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LECTURES 


tjIjL  constitution 


THE   UNITED   STATES 


BY 


SAMUEL   FREEMAN   MILLER,   LL.D. 

K  AJf  Associate  Justice  of  the  Supreme  Court  of  the  Unit  <      States 


NEW  YORK  AND  ALBANY 
BANKS  AND   BROTHERS,  LAW  PUBLISHE 

1893 


Copyright,  1891, 
By  banks  &  BROTHERS. 


T 


THIS   POSTHUMOUS  WORK 


r.   Jtxsticc   ptilUv 


IS   RESrECTFLLLY   DEDICATED 


CHIEF  JUSTICE   AND   ASSOCIATE  JUSTICES 


SUPREME  COURT  OK  THE  UNITED  STATES 


770574 


PREFACE. 


The  late  Mr.  Justice  Miller,  at  his  death,  left  a  care- 
fully prepared  manuscript  of  ten  lectures  upon  the  Con- 
stitution of  the  United  States,  which  had  been  read  by 
him  before  the  students  of  the  Law  School  of  the  National 
University,  in  the  city  of  Washington,  during  the  winter  of 
1889  and  early  spring  of  1890.  These  lectures  were  accom- 
panied by  a  series  of  notes,  prepared  under  his  direction. 

This  material,  and  two  other  papers  by  him  on  cognate 
subjects  —  the  first  an  address  before  the  Alumni  of  the 
Law  Department  of  the  University  of  Michigan  on  the 
29th  day  of  June,  1887,  entitled,  "  The  Constitution  and 
the  Supreme  Court  of  the  United  States";  the  other 
"  An  Oration  delivered  at  the  one  hundredth  anniversary 
of  the  framing  and  promulgation  of  the  Constitution  in 
Independence  Square,  Philadelphia,  on  the  17th  day  of 
September,  1887"  —  have  been  placed  in  my  hands  for 
arrangement  and  publication.  The  address  and  the  ora- 
tion were  published  together  under  Mr.  Justice  Miller's 
supervision  during  his  lifetime.  The  ten  lectures  are  now 
published  for  the  first  time. 

It  will  be  easily  seen  that  no  editing  of  these  papers, 
in  the  ordinary  sense  of  that  term,  was  necessary,  beyond 
the  care  required  in  order  to  ensure  the  exact  reproduc- 


VI  PREFACE. 

tion  of  the  thoughts  and  language  of  the  great  judge  who 
has  passed  away,  and  the  verification  of  the  authorities 
cited  or  quoted  in  the  footnotes.  The  simplicity  of  style, 
the  directness  of  statement,  the  breadth  of  view,  the 
honesty  of  purpose,  and  tlie  discriminating  analysis  to  be 
found  in  these  papers,  must  arrest  the  attention  and  com- 
mand the  admiration  of  students  of  Constitutional  History, 
without  extraneous  suggestions.  I  have,  accordingly,  printed 
Judge  Miller's  Lectures  as  they  came  to  me,  and  have 
attached  to  them  the  footnotes  in  the  condition  in  which 
they  were  left  by  him,  after  properly  verifying  them. 

I  have  also  taken  the  liberty  to  add  a  short  note  to 
each  of  these  Lectures,  which  in  each  case  will  explain 
itself.  I  have  also  added  a  supplemental  chapter  con- 
taining references  to  minor  provisions  of  the  Constitution, 
not  discussed  in  the  Lectures,  and  an  appendix  containing 

(1)  a  collated  copy  of  the  Constitution,  with  full  references 
to  the  cases  in  which  it  has  been  construed  or  discussed ; 

(2)  a  collated  copy  of  the  Articles  of  Confederation  ;  (3) 
copies  of  the  Randolph  draft  for  a  constitution,  and  of 
the  Pinckney  draft  for  the  same,  which  were  submitted 
to  the  convention  May  29,  1787,  both  of  which  proved  to 
be  of  substantial  use  in  the  discussions  which  followed  in 
the  convention. 

I  have  endeavored  to  present  this  work  to  the  profession 
and  the  public  in  a  manner  worthy  of  the  great  judge  who 
has  passed  away,  so  far  as  the  limited  time  given  me,  and 
my  duties  to  the  court  would  allow.  If  there  be  any  serious 
shortcoming,   no   one  will  regret   it   more  than  L      It  has 


PREFACE.  Vll 

been  to  me  a  labor  of  love  to  follow  in  the  footsteps  of 
one  whose  great  intellect,  probity,  manliness,  and  direct- 
ness of  purpose  were  recognized  by  the  whole  nation ; 
whose  amiable  character  was  admired  by  all  who  knew 
him ;  and  whose  friendship  I  was  permitted  to  enjoy  for 
nearly  a  quarter  of  a  century. 

Mr.  Justice  Miller  was  trained  in  the  school  of  Chief 
Justice  Marshall.  When  he  died,  the  bar  of  the  Supreme 
Court  passed  a  series  of  resolutions  to  express  their  esti- 
mate of  his  character,  and  of  the  great  value  of  his  services 
to  his  country.  Wlien  these  resolutions  were  presented  to 
that  court  by  the  Attorney  General  of  the  United  States, 
the  Chief  Justice,  in  responding,  said  : 

"When  he  took  his  seat,  the  country  was  in  the  throes 
of  internecine  conflict ;  when  his  eyes  closed,  it  was  upon 
a  happy,  prosperous,  and  united  people,  living  under  the 
form  of  government  devised  by  the  fathers,  the  wisdom 
of  whose  fabric  the  event  had  vindicated.  Great  problems 
crowded  for  solution :  the  suspension  of  the  habeas  corpus ; 
the  jurisdiction  of  military  tribunals ;  the  closing  of  the 
ports  of  the  insurrectionary  States ;  the  legislation  to  uphold 
the  two  main  nerves,  iron  and  gold,  by  which  war  moves 
in  all  her  equipage ;  the  restoration  of  the  predominance  of 
the  civil  over  the  military  authority ;  the  reconstruction 
measures  ;  the  amendments  to  the  Constitution,  involving 
the  consolidation  of  the  Union,  with  the  preservation  of 
the  just  and  equal  rights  of  the  States,  —  all  these  passed 
in  various  phases  under  the  jurisdiction  of  the  court,  and 
he   dealt  with  them  with  the  hand  of  a  master. 


Vlll  PREFACE. 

"  While  he  took  his  full  share  in  the  consideration  of 
every  subject  of  judicial  investigation,  notably  in  reference 
to  some,  as,  for  instance,  those  pertaining  to  the  public 
lands,  yet  he  chiefly  distinguished  himself  in  the  treatment 
of  grave  constitutional  questions,  which  brought  into  play 
the  patience,  the  intuition,  the  deliberation,  the  foresight, 
the  intellectual  grasp  and  the  breadth  of  view  which  char- 
acterize all  who  have  deserved  the  name  of  statesman. 
And,  as  with  private  controversies,  so  with  those  concern- 
ing the  public  and  the  Government,  he  sought  to  go  by  the 
ancient  ways  and  never  to  incur  the'  curse  denounced  on 
him  who  removeth  the  landmarks.  His  style  was  like  his 
tread,  massive  but  vigorous.  His  opinions,  from  his  first  in 
the  second  of  Black's  Reports,  to  his  last  in  the  one  liun- 
j  dred  and  thirty-sixth  United  States,  some  seven  hundred 
in  number  (including  dissents),  running  through  seventy  vol- 
umes, were  marked  by  strength  of  diction,  keen  sense  of 
justice,  and  undoubting  firmness  of  conclusion. 

"  He  had  that  true  legal  instinct  which  qualified  him  to 
arrive  at  the  very  right  of  a  cause  and  to  apply  settled 
principles  to  its  proper  disposition ;  while  to  courage  was 
joined  an  integrity  and  simplicity  that  always  commanded 
respect  and  generally  carried  conviction.  Benignant  in 
temperament,  and  with  a  heart  full  of  sensibility,  his  inter- 
course with  his  fellows  was  so  cordial  and  kindly  as  to 
endear  him  to  all  who  came  within  the  sphere  of  his 
influence."  

To  Gherardi  Davis,  Esq.,  of  the  New  York  bar,  I  wish 
to  return    my   thanks    for    valuable    suggestions    in    the 


PREFACE.  IX 

preparation  of  these  Lectures  and  Notes  for  publication : 
and  still  more  for  the  full  references  to  decided  cases 
which  accompany  the  copy  of  the  Constitution  in  the 
Appendix. 

To  Hon.  J.  B.  Moore,  Assistant  Secretary  of  State,  I  am 
indebted  for  the  collated  and  certified  copies  of  the  Con- 
stitution, etc.,  in  the  Appendix,  which  cannot  but  prove 
interesting  to  students  of  constitutional  history. 

J.  C.  BANCEOFT  DAVIS. 

Washington,  July  1,  1891. 


TABLE  OF  CONTEXTS. 


I.   Framing  of  the  Coxstitutiox 
Notes  upon  Lecture  I. 


1 
35 


II,   The  Principles  of  Construction  of  the  Constitution      59 
Notes  upon  Lecture  II 117 


III.    The  Executive  Branch  of  the  Government 
Notes  upon  Lecture  III.     ... 

IV.   The  Separate  Powers  of  the  Senate  and  the  House 
of  Representatives  . 
Notes  upon  Lecture  IV. 

V.    The  Power  of  Taxation 
Notes  upon  Lecture  V. 

VI.   Naturalization  and  Citizenship 
Notes  upon  Lecture  VI. 

VII.    The  Judicial  Power  of  the  United  States 
Notes  upon  Lecture  VII.    .... 

VIII.    The  Supreme  Court  of  the  United  States 
Notes  upon  Lecture  VIII. 


145 
177 


189 
217 

227 
263 

275 
297 

309 
351 

373 
419 


XI 


Xii  TABLE    OF    CONTENTS. 

PAOB 

IX.   Kegulation  of  Commerce  among  the  States      .         .  43o 

Notes  upon  Lecture  IX 474 

X.   The  Right  of  Trial  by  Jury 485 

Notes  upon  Lecture  X 511 

XL   Impairment  of  the  Obligation  of  Contracts     .         .  523 

Notes  upon  Lecture  XL     ......  566 

XII.   Limitations  upon  the  Powers  of  States    .        .        .  573 

Notes  upon  Lecture  XII 598 

XIII.    Supplementary:    Subjects  not  discussed  elsewhere  601 

Appendix     I.   The  Constitution  of  the  United  States       .         .  681 

II.    Articles  of  Confederation  — 1777         .         .         .  716 

III.    Resolutions  offered  by  Mr.  Randolph  .  .728 

IV.    The  Pinckney  Plan 732 

Index    ............  741 


TABLE   OF   CASES 

CITED  IN  LECTURES  AND  NOTES. 


Ableman  v.  Booth,  21  How.  20G  98 

Allen  I'.  Baltimore  &  Ohio  Railroad, 

114  U.  S.  311  365,  306 

Almy  V.  California,  24  How.  169  80 

American  Insurance  Co.  v.  Canter, 

1  Pet.  511  131,  133,  370 
Anderson  v.  Dunn,  6  Wheat.  204  614 
Antoni  v.  Greenhow,  107  U.  S.  769  365 
Arkansas  Valley  Land  &c.  Co.  v. 

Mann,  130  U.  S.  69  520 

Asher  v.  Texas,  128  U.  S.  129  269, 

270,  475,  483 
Austin  V.  Aldermen,  7   Wall.  694 

249,  256 
Ayers,  In  re,  123  U.  S.  443  365,  366 

Bain,  Ex  parte,  121  U.S.  1  517 

Baiz,  In  re,  135  U.  S.  403  362,  426 

Baker  r.  Portland,  5  Sawyer,  566  322 
Bank  of  Commerce  i'.  New  York, 

2  Black,  620  80,  257 
Bank  of  New  York  v.  Supervisors, 

7  Wall.  26  258,  266 

Bank  Tax  Case,  2  Wall.  200  80,  257 
Banks  v.  Manchester,  128  U.  S.  244  620 
Barbier  v.  Connolly,  113  U.  S.  27  659 
Barney  v.  Keokuk,  94  U.  S.  324  360 
Barron  v.  Mayor  &c.  of  Baltimore, 

7  Pet.  243  93 

Bartemeyer  v.  Iowa,  14  Wall.  21  674 
Basey  v.  Gallagher,  20  Wall.  670  494 
Baylis  v.  Travellers'  Insurance  Co., 

113  U.  S.  316  494 

Beers  v.  Hausjhton,  9  Pet.  329  546 


Bell  Gap  Railroad  Co.  r.  Pennsylva- 
nia, 134  U.  S.  232  660 

Bennett  v.  Butterworth,  11  How. 
669  319,  522 

Board  of  Liquidation  v.  McConib, 
92  U.  S. 531  365, 366 

Bond  V.  Brown,  12  How.  254  494 

Bowman  v.  Chicago  &  Northwest- 
ern Railway  Co.,  125  U.  S.  465 

425,  474,  477,  483 

Boyce's  Executors  v.  Grundy,  3 
Pet.  210  319 

Boyd  V.  United  States,  116  U.  S.  616  647 

Bradwell  v.  The  State,  16  Wall. 
130  660 

Brashear  v.  Mason,  6  How.  92  424 

Brimmer  v.  Rebman,  138  U.  S.  78 

425,  475,  485 

Briscoe  v.  Bank  of  the  Common- 
wealth of  Kentucky,  11  Pet.  257    583 

Bronson  v.  Kinzie,  1  How.  311  549 

Brown  v.  Houston,   114  U.  S.  622 

474,  476 

Brown  v.  Maryland,  12  Wheat.  419 

80,  268,  462,  591 

Browne  v.  Strode,  5  Cranch,  303       335 

Burgess  v.  Seligman,  107  U.  S.  20 

274,  358 

Burrow-Giles  Lithographic  Co.  v. 
Sarony,  111  U.  S. 53  620 

Butchers'  Union  Co.  r.  Crescent 
City  Live  Stock  Co.,  Ill  U.  S.  746  567 

Butterworth  i:  Hoe,  112  U.  S.  50       424 


XIV 


TABLE    OF    CASES. 


PAGE 

Buzard  v.  Houston,  119  U.  S.  347      522 
Calder  v.  Bull,  3  Dall.  380  586 

Caldwell  v.  Texas,  137  U.  S.  692         072 
California  v.  Central  Pacific  Kail- 
road  Co.,  127  U.  S.  1  266,  425, 

474,  480 
Callaghan  r.  Myers,  128  U.  S.  617  620 
Callan  v.  Wilson,  127  U.  S.  540         361, 

518,  519 
Callanan  i\   Judd,  23    Wisconsin, 

343  313 

Calton  V.  Utah,  130  U.  S.  83  519 

Canal  Co.  v.  Clark,  13  W^all.  311         622 
Cannon  v.  New  Orleans,  20  Wall. 

577  255,  594 

Cai'dwell  r.  American  Bridge  Co., 

113  U.  S.  205  474,  478 

Cherokee  Nation  v.  Georgia,  5  Pet.  1 

314,  320,  335,  401 
Chew  Heong  v.  United  States,  112 

U.  S.  53G  324 

Chicago,  Burlington  &c.  Eailroad 

V.  Iowa,  94  U.  8.  155  397 

Chicago  &  Burlington  Railroad  v. 
Guffey,  120  U.  .S.  569;  S.  C.  122 
U.  S.  561  265 

Chisholm  v.  Georgia,  2  Dall.  419 

02,  77,  83,  331,  379,  423,  652 
Chy  Lung  v.  Freeman,  92  U.  S.  275  80 
Civil  Rights  Cases,  109  U.  S.  3         656, 

657,  659 
Clay  V.  Field,  138  U.  S.  464  426,  657 

Clinton  Bridge,  1  Woolworth,  150    447 
Coe  V.  Errol,  116  U.  S.  517         252,  474, 

477,  592 
Cohens  v.  Virginia,  6  Wheat.  204 

76,  98,  317,  318,  335 
Cole  1-.  Cunningham,  133  U.  S.  107  633 
Cole  V.  Lagrange,  113  U.  S.  1  265 

Colson  V.  Lewis,  2  Wheat.  377  334 

Commissioner  of  Patents  v.  White- 
ley,  4  Wall.  522  424 
Concord  ;•.  Robinson,  121  U.  S.  671  272 
Converse,  In  re,  137  U.  S.  624    059,  664 
Cook  V.  United  States,   138  U.  S. 
157                                       361,  425,  520 


Cooley  V.  Port  Wardens  of  Phila- 
delphia, 12  How.  299  450,  454, 
455,  461,  462 
Cooper  Manufacturing  Co.  v.  Fer- 
guson, 113  U.  S.  727         474,  475,  476 
Cooper's  Case,  138  U.  S.  404  427 
Corbin  v.  Gould,  133  U.  S.  308  622 
Corson  v.  Maryland,  120  U.  S.  502 

114,  269,  474,  483 
Cox  V.  McClenachan,  3  Dall.  478  615 
Craig  V.  Missouri,  4  Pet.  408  524,  581 
Crandall  v.  Nevada,  6  Wall.  35  80, 

260,  454,  402, 463 
Crowley  v.  Christensen,  137  U.  S. 

86  475,  483,  674 

Crutcher  v.  Kentucky,  141  U.  S.  47  425 
Cummings  v.  Merchants'  National 

Bank,  101  U.  S. 153  260 

Cummings  v.  Missouri,  4  Wall.  277 

105,  585 
Cunningham  v.  Mason  &  Brunswick 

Railroad,  109  U.  S.  446  365 

Curran  i-.  Arkansas,  15  How.  304  583 
Dartmouth  College  Case,  4  Wheat. 

518  118,  391,  532, 556 

Davis  V.  Gray,  16  Wall.  203  365,  366 
Decatur  v.  Paulding,  14  Pet.  497  424 
De  Chastellux  v.  Fairchild,  15  Penn. 

St.  18  348 

Delaware  Railroad  Tax,  18  Wall. 

206  262 

Dobbins  v.  Erie  County  Commis- 
sioners, 16  Pet.  435  258,  267 
Dodge  V.  Woolsey,  18  How.  331  89 
Douglass  V.  County  of  Pike,  101 

U.  S. 677  274 

Dred  Scott  v.  Sandford,  19  How.  441 

83,  114,  403,  405 
Duncan,  Petitioner,  In  re,  139  U.  S. 

449  641 

Dunlap  V.  Black,  128  U.  S.  40  '  424 

Eagle  (The),  8  Wall.  15  327 

Edwards  v.  Elliott,  21  Wall.  632  493 
Edwards  v.  Kearzey,  96  U.  S.  695 

632,  639 


TABLE    OF    CASES. 


XV 


Eilenbecker  v.  Plymouth  County, 

1:^,4  U.  S.  31  674 

Elk  r.  Wilkins,  112  U.  S.  94  280,602 
Essex  Public  Koad  Board  v.  Skiu- 

kle,  140  U.  S.  334  572 

Evansville    Bank  v.  Britton,    105 

U.  S. 322  260 

Fargo  V.  Michigan,  121  U.  S.  230 

114,  400,474,479 
Fashon  v.  Greenliow,  135  U.  S.  713  568 
Fenn  v.  Holme,  21  How.  481  320 

Fisher  v.  Cockrell,  5  Pet.  248  333 

Fisk  V.  Jefferson  Police  Jury,  116 

U.  S. 131  249,  474,  476,  568 

Flanders  v.  Tweed,  9  Wall.  425  494 

Fleming  v.  Page,  9  How.  603  2G4 

Fletcher  v.  Peck,  9  Cranch,  87  555 

Foster  v.  Kansas,  112  U.  S.  201  474,  482 
Foster  v.  Neilson,  2  Pet.  253  130,  322 
Freehand  ;;.  Williams,  131  U.  S.  405  569 
Gaines  v.  Thompson,  7  Wall.  347  424 
Garland,  Ex  parte,  4  Wall.  333  105,  165 
Garnett,  Petitioner,  In  re,  140  U.  S.  362 
Genessee  Chief  (The)  i'.  Fitzhugh, 

12  How.  443  111,  133,  327 
Geofroy  v.  Riggs,  133  U.  S.  258  627 
Georgia  v.  Stanton,  6  Wall.  50  314, 

315,  347,  424 

Gibbons  v.  Ogden,  9  Wheat.  1  80, 

231,  394,  397,  442,  446,  447,  449,  454, 

459,  462 
Gilbert  v.  Priest,  65  Barb.  444  313 

Gilman  v.  City  of  Philadelphia,  3 

Wall.  713  454,  461,  462 

Given  i'.  Wright,  117  U.  S.  648  261 

Gloucester  Ferry  Co.  v.  Pennsylva- 
nia, 114  U.  S.  196  474,  475,  476,  481 
Gon-shay-ee's  Case,  130  U.  S.  343  425 
Goodrich  v.  Gutlirie,  17  How.  284  424 
Gordon  v.  Hobart,  2  Sumner,  401  319 
Gordon  v.  Longest,  16  Pet.  97  333,  336 
Gordon  v.  United  States,  2  Wall. 

561 ;  117  U.  S.  699  339,  349,  355 

Greenwood  v.  Freight  Co.,  105  U.  S. 

13  536 
Guy  V.  Baltimore,  100  U.  S.  434        444 


PAGE 

Hagar  v.  Reclamation  District,  111 

U.  S.  701  666 

Hagood  V.  Southern,  117  U.  S.  52  365 
Hall  V.  De  Cuir,  95  U.  S.  485  81 

Hamilton    v.    St.     Louis     County 

Court,  15  Missouri,  3  60 

Hans  V.  Louisiana,  24  Fed.  Rep.  55 

230,  423,  653 
Hans  V.   Louisiania,    134    U.  S.   1 

330  363 
Hardenburg  v.  Kidd,  10  California, 

402  228 

Hardin  v.  Jordan,  140  U.  S.  371  360 

Hart  V.  United  States,  118  U.  S.  62 

179,  181 
Hauenstein  v.  Lynham,  100  U.  S. 

483  322 

Hayburn's  Case,  2  Dall.  408  353 

Head  v.  Amoskeag  Manufacturing 

Co.,  113  U.  S.  9  667 

Head  Money  Cases,  112  U.  S.  580 

264,  323,  324,  474,  481,  644 
Heine  v.  Levee  Commissioners,  19 

Wall.  655  228 

Henderson  v.  Mayor  of  New  York, 

92  U.  S.  259  80,  269,  461,  463 

Henderson's   Distilled   Spirits,    14 

Wall.  44  494 

Hepburn  v.  Griswold,  8  Wall.  603 

135,  136,  142,  144 
Hine  (The)  v.  Trevor,  4  Wall.  555  112 
Hinson  v.  Lott,  8  Wall.  148  251,  591 
Hipp  V.  Babur,  19  How.  271  522 

Holland  v.  Challen,  110  U.  S.  15  522 
Home  Insurance  Co.  v.  New  York, 

134  U.  S.  594  671,  672 

Howard  v.  Bugbee,  24  How.  461  549 
Hucless  V.  Childrey,  135  U.  S.  709  568 
Hurtado  v.  California,    110  U.  S. 

516  493 

Huse  V.  Glover,  119  U.  S.  543  255 

Hutchins  v.  Ring,  1  Wall.  53  522 

Hylton   V.   United  States,   3  Dall. 

171  238,  628 

Illinois    Central    Railroad  v.  Bos- 
worth,  133  U.  S.  92  €00 


XVI 


TABLE    OF    CASES. 


PAGE 

Insurance    Co.    v.    Comstock,    16 

Wall.  258  497 

Jackson  v.  Twcntyman,  2  Pet.  Vi6  335 
Jones  V.  United   States,  137  U.  S. 

202  371,  372,  624,  639 

Justices  (The)  v.  Murray,  9  Wall. 

274  493,  498 

Kauft'inan  v.   Wootters,  138  U.  S. 

285  672 

Keramler's  Case,  136  U.  S.  436         649, 

660,  663 
Kendall  v.  United   States,  12  Pet. 

524  424 

Kennard  v.  Louisiana,  92  U.  S.  480  666 
Kentucky  v.  Dennison,  24  How.  GQ  638 
Kentucky  Railroad  Tax  Cases,  115 

U.  S.  321  668,  669 

Kidd  V.  Pearson,  128  U.  S.  1      425,  475, 

483,  676 
Kilbourn  v.  Thompson,  103  U.  S. 

168  412,  614 

Killian  v.  Ebbinghaus,  110  U.  S.  568  522 
Klein,  In  re,  1  How.  277  110 

Knox  V.  Exchange  Bank,  12  Wall. 

379  531 

Knox  V.  Lee,  12  Wall.  457  136,  137 

Knox    County     Court    v.    United 

States,  109  U.  S.  229"  274 

Kring  v.  Missouri,  107  U.  S.  221  588 
Kunzler  v.  Kohaus,  5  Hill,  317  110 

Leeper  v.  Texas,  139  U.  S.  712  664 

Legal  Tender  Cases,  110  U.  S.  421 

137,  652 
Leisy  v.  Hardin,  135  U.  S.  100  425, 

475,  483 
Leloup  V.  Port  of  Mobile,  127  U.  S. 

640  269,  425,  474,  482 

Lent  V.  Tillson,  140  U.  S.  316  664 

Lewis  V.  Cocks,  23  Wall.  466  522 

Lexington  (The),  6  How.  344  327 

License  Tax  Cases,  5  Wall.  462  629 
Liggett  and  Myers  Tobacco  Co.  v. 

Fiuzer,  128  U.  S.  514  622 

Litchfield  v.  Webster  County,  101 

U.  S.  773  365 

Livingston  v.  Moore,  7  Pet.  469        493 


Livingston  v.  Story,  11  Pet.  351        130 

Loan  Association  v.  Topeka,  20 
Wall.  655  104,  105,  231,  243,  246 

Lottawanna(The),21  Wall.  558  132,  134 

Loughborough  v.  Blake,  5  Wheat. 
317  264 

Louisiana  v.  Jumel,  107  U.  S.  711 

365,  383 

Louisiana  v.  Mayor  of  New  Or- 
leans, 109  U.  S.  285  567 

Louisiana  ex  rel.  Nelson  v.  St.  Mar- 
tin's Parish,  111  U.  S.  716  567 

Louisville  &  Nashville  Railroad  v. 
Palmer,  109  U.  S.  244  266,  566 

Louisville,  New  Orleans  &c.  Rail- 
way Co.  V.  Mississippi,  133  U.  S. 
587  475 

Lyng  V.  Michigan,  135  U.  S.  161         425 

McAlister  v.  United  States,  141 
U.  S.  ,  370 

McCall  V.  California,  136  U.  S.  104 

425,  475,  483 

McCracken  v.  Hay  ward,  2  How.  608 

549 

McCuUoch  V.  Maryland,  4  Wheat. 
316       141,  142,  231,  256,  257,  259,  388, 
390,  651,  652 

McElrath  v.  United  States,  102  U.  S. 
426  494 

McGahey  v.  Virginia,  135  U.  S.  662 

267,  366,  568 

Mackey  v.  United  States,  10  Pet. 
340  130 

Mackin  v.  United  States,  117  U.  S. 
348  505 

Macon  County  v.  Huidekoper,  134 
U.  S.  332  274 

Magnolia  (The),  20  How.  296  327 

Mahew  v.  Thatcher,  9  Wheat.  129     130 

Manning,  In  re,  139  U.  S.  504  673 

Marbury  v.  Madison,  1  Cranch,  137 

384,  387,  424 

Martin  v.  Hunter's  Lessee,  1  Wheat. 
304  63,  83,  98,  102,  227,  313,  342 

Mason  v.  Haile,  12  Wheat.  370  546 

Mayfleld's  Case,  141  U.  S.  107  426 


TABLE    OF    CAS?:S. 


XVll 


PAOE 

Maynard  r.  Hill,  125  U.  S.  190  ;$o5 

Memphis  &  Little  Hock  Railroad  v. 

Railroad     Coinmissioners,     112 

U.  S.  609  266 

Menendcz  r.  Holt,  128  U.  S.  514  622 
Mercantile  Bank  v.  New  York,  121 

U.  S.  138  267 

Merrill  v.  Monticello,  138  U.  S.  673  372 
Merryman,  Ex  parte,  Taney's  C.  Ct. 

Decisions,  246  349 

Metropolitan   Railroad  v.  District 

of  Columbia,  132  U.  S.  1  627 

Miller  i'.  Mayor  of  New  York,  107 

U.  S. 385  327,  474,  478 

Minneapolis  &  St.  Louis  Railway 

I'.  Beck  with,  129  U.  S.  26  671 

Minnesota  v.  Barber,  136  U.  S.  313 

425,  475,  477,  484 
Minor  v.  Happersett,  21  Wall.  162  661 
Missouri    Pacific    Railway    Co.   v. 

Humes,  115  U.  S.  512  669 

Missouri   Pacific    Railway   Co.    v. 

Mackey,  127  U.  S.  205  670 

Mitchell  I'.  Harmony,  13  How.  113  626 
Mitchell  V.  Smale,  140  U.  S.  406  360 
Montault  v.  United  States,  12  How. 

47  130 

Montello  (The),  11  Wall.  411  327 

Moran  v.  New  Orleans,  112  U.  S.  69 

80,  474,  480 
Morgan  v.  Gay,  19  Wall.  81  494 

Morgan  v.  Louisiana,  93  U.  S.  217    266 
Morgan's  Steamship  Co.  v.  Louisi- 
ana Board  of  Health,  118  U.  S. 

455  ^55,  474,  480,  594 

Mormon  Church  v.  United  States, 

136  U.  S.  1  639,  645 

Mugler  V.  Kansas,  123  U.  S.  623        474, 

483,  675 
Munn  V.  Illinois,  94  U.  S.  113  397,  666 
Murdock  v.  City  of  Memphis,  20 

Wall.  590  346 

Murphy  v.  Ramsey,  114  U.  S.  15  645 
Nabob  of  Carnatic  v.  East  India 

Company,  1  Ves.  Jr.  371;  S.  C 

2  Ves.  Jr.  56  314 


Nashville,  Chattanooga  &c.  Railway 

Co.  V.  Alabama,  128  U.  S.  96  425 

Natal  V.  Louisiana,  139  U.  S.  621        67:h 
Neagle,  In  re,  135  U.  S.  1  427 

Nelson  v.  St.  Martin's  Parish,  111 

U.  S.  717  274 

New  Hampshire  c.  Louisiana,  108 

U.  S.  76  330,  36:'.,  ;](;(;,  382 

New  Jersey  (Tiie),  10  How.  5«6        327 
New  Jersey  v.  Wilson,  7  Cranch, 

164  261 

New  Jersey  v.  Yard,  95  U.  S.  104       565 
New  Orleans  v.  Houston,  119  U.  S. 

265  265 

New  Orleans  Waterworks  v.  Lou- 
isiana  Sugar   Refining   Co.,   125 

U.  S.  18  569 

New  York  v.  Connecticut,  4  Dall. 

4  314,382 

Norfolk  &  Western  Railroad  Co.  r. 

Pennsylvania,  136  U.  S.  1 14    425,  475 
Norris  v.  Jackson,  9  Wall.  125  495 

North    Missouri    Railroad    Co.    v. 

Magulre,  20  Wall.  46  235 

Ogden    V.  Blackledge,   2    Cranch, 

272  348 

O'Reilly  v.  Morse,  15  How.  62  621 

Orleans  (The),  11  Pet.  175  133,  327 

Osborn  c.  Nicholson,  13  Wall.  654     657 
Osborn  v.  United   States    Hank,  9 

Wheat.  738        259,  266,  292,  314,  315, 
316,  365,  366 
Osborne  v.  United  States,  91  U.  S. 

474  165 

Owings  V.  Speed,  5  Wheat.  420  91 

Pacific  Insurance  Co.  v.   Soule,  7 

Wall.  433  238,  629 

Packer  v.  Bird,  137  U.  S.  661  360 

Packet    Co.    v.   Catlettsburg,    105 

U.  S.  559  255,  454 

Packet  Co.  v.  Keokuk,  95  U.  S.  80 

254,  594 
Parsons  v.  Bedford,  3  Pet.  433  494,  496 
Passenger  Cases,  7  How.  283      80,  269, 

461,  463 
Pawlet  V.  Clark,  9  Cranch,  292  334 


XVIU 


TAliLK    OF    CASES. 


I'fik  V.  riiicaito  &  Northwestern 
Hailroad,  1)4  U.  S.  164  ;?()7 

Pembina  Mining  Co.  v.  Penns^lva- 
nia,  125  U.  S.  181  425,  GGS,  609 

Penhallow  v.  Doane,  3  Dall.  54    47,  121 

Penn  v.  Lord  Baltimore,  1  Ves.  Sen. 
444  314 

Pennoyer  v.  McConnaughby,  140 
U.  S.  1  268,  364 

Pennsylvania  v.  Wheeling  &c. 
Bridge  Co.,  9  How.  647;  11 
How.  528;   13  How.  518  619 

Pennsylvania  v.  Wheeling  &c. 
Bridge  Co.,  18  How.  421  619,  620 

Penn.sylvania  Raih'oad  Co.  v.  Miller, 
132  U.  S.  75  425,  570 

Pensacola  Telegraph  Co.  v.  West- 
ern Union  Telegraph  Co.,  96 
U.  y.  1  269,  270 

People  i\  Compagnie  G^nerale 
Transatlantiqae,    107    U.   S.    59 

269,  460 

People  V.  Weaver,  100  U.  S.  539         259 

Pervear  f.  Commonwealth,  5  Wall. 
475  649 

Philadelphia  &c  Steamship  Co.  v. 
Pennsylvania,  122  U.  S.  326  80, 

269,  400,  425,  474,  478 

Phillips  V.  Preston,  5  How.  278  494 

Pickard  i\  East  Tennessee,  Virginia 
&c.  Uailroad,  130  U.  S.  037  266 

Pickard  v.  Pnllmau  Southern  Car 
Co.,  117  U.  S.  34  80,474,478 

Pittsburg  &c.  Kailroad  Co.  v.  South- 
western Pennsylvania  Railway 
Co.,  77  Penn.  St.  173  246 

Planter  (The),  7  Pet.  324  327 

Poindexter  v.  Greenhow,  114  U.  S. 
270  365,  366 

Pollard  V.  Files,  2  How.  591  130 

Pound  r.  Turck,  95  U.  S.  459  454 

Powell  v.  Pennsylvania,  127  U.  S. 
678  659 

Presser  v.  Illinois,  116  U.  S.  252 

625,  645,  062 

Prigg  v.  Pennsylvania,  16  Pet.  539    403 


Provident  Institution  for  Savings 
V.  Jersey  City,  1 13  U.  S.  50(5  667 

Pullman's  Palace  Car  Co,  v.  Penn- 
sylvania, 141  U.  S.  18  425 

Pnmpelly  v.  Green  Bay  Co.,  13 
Wall.  166  247 

Rahrer,  Petitioner,  In  re,  140  U.  S. 
545  677 

Railroad  Co.  v.  Husen,  95  U.  S.  465 

81,  463,  465 

Railroad  Co.  v.  McLure,  10  Wall. 
511  531 

Railroad  Co.  r.  Rock,  4  Wall.  177 

531,  589 

Ratterman  v.  Western  Union  Tele- 
graph Co.,  127  U.  S.  411  269,  425, 

474,  482 

Rector  of  Christ's  Church  v.  County 
of  Philadelphia,  24  How.  300  262 

Reggie,  Ex  parte,  114  U.  S.  642  638 

Reynolds  v.  Stockton,  98  U.  S.  145    645 

Reynolds  v.  Stockton,  140  U.  S.  254  631 

Rhode  Island  v.  Massachusetts,  12 
Pet.  657  314 

Robbins  v.  Shelby  County  Taxing 
District,  120  U.  S.  489  81,  114, 

269,  270,  474,  477,  483 

Robinson  v.  Campbell,  3  Wheat. 
211  319 

Ross,  Petitioner,  In  re,  140  U.  S.        370 

Ross  V.  Prentiss,  3  How.  771  346 

Runkle  v.  United  States,  122  U.  S. 
543  178 

Sackett  v.  Andross,  5  Hill,  327  110 

St.  John  V.  Paine,  10  How.  557  327 

St.  Louis,  Iron  Mountain  &c.  Rail- 
way V.  Vickers,  122  U.  S.  360         517 

St.  Louis  V.  Rutz,  138  U.  S.  226  360 

Sands  v.  Manistee  River  Improve- 
ment Co.,  123  U.  S.  288  425 

Santa  Clara  County  v.  Southern 
Pacific  Railroad  Co.,  118  U.  S. 
394  660,  663 

Satterlee  v.  Matthewson,  2  Pet.  413 

348,  537,  588 

Scholey  v.  Rew,  23  Wall.  331  264 


TABLE    OF    CASES. 


XIX 


Scotland  County  v.  Hill,  132  U.  S. 

107  274 

Scott  V.  Neely,  140  U.  S.  lOG  357,  522 
Seibert  v.  Lewis,  122  U.  S.  284  569 

Simmons  v.  Saul,  138  U.  S.  439  631 

Sinnot  v.  Davenport,  22  How.  227  80 
Sioux  City  Railway  Co.  i-.  Sioux 

City,  138  U.  S.  98  571 

Slaughter  House  Cases,  16  Wall. 

36  101,408,411,432,057 

Smith  V.  Alabama,  124  U.  S.  4G5       425, 

474,  479 
Soon  Hing  v.  Crowley,  113   U.  S. 

703  G59 

Soulard   v.   United   States,   4   Pet. 

511  130 

South  Carolina  v.  Georgia,  93  U.  S.  5  423 
Spencer  v.  Merchant,  125  U.  S.  345  670 
Spies  V.  minois,  123  U.  S.  131  518 

Spraigue  v.  Thompson,  118  U.  S.  90  474 
Springer  v.  United  States,  102  U.  S. 

586  237,  628 

State  V.   Fleming,    7    Humphreys, 

152  348 

State  Freight  Tax  (Case  of),  15 

AVall.  232  80,  269,  462 

State  Tonnage  Tax  Cases,  12  Wall. 

204  253 

Steamboat  Orleans   v.  Phoebus,  11 

Pet.  175  327 

Stone  V.  Illinois  Central  Railroad, 

116U.  S.  347  474 

Stone  V.  New  Orleans  &  Northeast- 
ern Railroad,  116  U.  S.  352  474 
Stouteuburgh  v.  Hennick,  129  U.  S. 

141  425,  475,  483 

Story  V.  Livingston,  13  Pet.  359  130 
Sturges  V.  Crowninshield,  4  Wheat. 

122  110,544,540 

Telegraph  Co.  v.  Texas,  105  U.  S. 

460  81 

Telephone  Cases,  126  U.  S.  1  621 

Tennessee  v.  Davis.  100  U.  S.  257 

321,  336 
Tennessee  v.  Pullman  Southern  Car 

Co.,  117  U.  S.  34  80,  474 


PAOE 

Tennessee  v.  Sneed,  96  U.  S.  69  542 

Terry,  Exjiarte,  128  U.  S.  289  510 

Terry  v.  Anderson,  95  U.  S.  528  545 

Thaw  V.  Ritchie,  136  U.  S.  519  627 
Thomas  Jefferson  (The),  10  Wheat. 

428  111,133,327 

Thompson  v.  Railroad  Companies, 

6  Wall.  134  522 
Thompson   v.  Whitman,   18   Wall. 

457  633 

Tomlinson  v.  Branch,  15  Wall.  460  365 

Trade  Mark  Cases,  100  U.  S.  82  622 
Transportation  Co.  c.  Parkersl)urg, 

107  U.  S.  691  255 
Turpin  v.  Burgess,  117   U.  S.  504 

252,  592 
United  States  v.  Arjona,  120  U.  S. 

479  104,  618 

United  States  v.  Arredoudo,  9  Pet. 

699  313,  322 

United  States  v.  Barlow,  132  U.  S. 

271  618 

United  States  v.  Battiste,  2  Sum- 
ner, 240  501 
L'nited  States  v.  Chicago,  7  How. 

185  274 

United  States  v.  Clark  County,  96 

U.  S.  211  274 

United  States  v.  Coombs,  12  Pet. 

72  133,  327 

United    States   ;•.   Cruikshank,   92 

U.  S.  542  521,  662 

United  States  v.  Cnrtis,  4  Mason, 

232  491 

United    States    v.   D'Auterive,    10 

How.  609  130 

United  States  v.  Ferreira,  13  How. 

40  353 

United  States  r.  HoUiday,  3  Wall. 

417  470 

United  States  v.  Howland,  4  Wheat. 

108  319 
United   States  v.  Jones,  119  U.  S. 

447  355 

United  States  v.  Kagama,  118  U.  S. 
375  402 


XX 


TABLE    OF    CASES. 


United  States  v.  King,  7  How.  833  130 
United  States  v.  Klein,  13  Wall.  128  165 
United  States  v.  Lee,  106  U.  S.  190 

328,  341,  350 
United    States    v.    Louisiana,    123 

U.  S.  32  264 

United  States  v.  Macon,  99  U.  S. 

582  274 

United  States  v.  Morris,  1  Curtis, 

23  501 

United  States  v.  Page,  137  U.  S. 

673  179 

United  States  v.  Peters,  5  Cranch, 

115  127 

United  States  v.  Petit,  114  U.  S. 

429  504,  505 

United    States  v.   The   Pirates,   5 

Wheat.  184  623 

United  States  v.  Railroad  Company, 

17  Wall.  322  265 

United    States    v.    Rauscher,    119 

U.  S.  407  323,  325 

United   States  v.  Reese,  92  U.  S. 

214  679,  680 

United   States  v.  Rice,  4    Wheat. 

246  264 

United  States  r.  Rillieux,  14  How. 

189  130 

United  States  v.  Schurz,  102  U.  S. 

378  386,  424 

United  States  i-.  Shive,  1  Baldwin, 

610  501 

United  States  v.  Turner,  11  How. 

663  130 

United  States  v.  Wilson,  7  Pet.  150  165 
United  States  v.  Yale  Todd,  13  How. 

52,  note  353 

University  v.  People,  99  U.  S.  309  531 
Van    Brocklin   v.   Tennessee,    117 

U.  S.  151  266 

Vanhorne's  Lessee  v.  Dorrance,  2 

Dall.  304  67,  71,  98,  191,  349 

Veazie  Bank  v.  Fenno,  8  Wall.  533 

238,  629 
Vicksburg    &c.    Railroad    Co.    v. 

Dennis,  116  U.  S.  665  262 


Vicksburg  &  Meridian  Railroad  v. 

Putnam,  118  U.  S.  545  517 

Virginia,  Ex  liarte,   100  U.  S.  339 

658,  665 
Virginia  Coupon  Cases,  114  U.  S. 

269  568 

Wabash  &  St.  Louis  Railway  Co. 

V.  Illinois,  118  U.  S.  557  81,  114, 

400,  474,  481,  599,  644 
Walker  v.   Sauvlnet,  92   U.    S.  90 

494,  663 
Wallach  v.  Van  Riswick,  92  U.  S. 

202  600 

Walling  V.  Michigan,  116  U.  S.  446 

269,  474,  484 
Walston  V.  Nevin,  128  U.  S.  578  670 
AVard  v.  Maryland,  12  Wheat.  418  80 
Waring  v.  Clarke,  5  How.  441  327 

Washington  University  v.  Rouse,  8 

Wall.  439  562 

Watson  V.  Mercer,  8  Pet.  88      539,  588 
Welton  V.  Missouri,  91  U.  S.  275 

80,  269,  462,  464 
Western   Union  Telegraph  Co.  v. 

Alabama,  132  U.  S.  472  269,  425, 

475,  482 
Western  Union  Telegraph   Co.  v. 

Pendleton,  122  U.  S.  347  81, 

474,  482 
Western  Union   Telegraph   Co.  v. 

Texas,  105  U.  S.  460  463,  466 

Weston  V.  Charleston,  2  Pet.  449    258, 

259,  266 
Wheaton  v.  Peters,  8  Pet.  591  620 

Wheeler  v.  Jackson,  137  U.  S.  245 

271,  571 
Wheeling  &c.   Bridge   Co.  v.  Bel- 
mont Bridge  Co.,  138  U.  S.  287       372 
Whitehead  v.  Shattuck,  138  U.  S. 

146  522 

Willamette    Iron    Bridge    Co.    v. 

Hatch,  125  U.  S.  1  474,  478 

William  Wells,  Ex  parte,  18  How. 

307  165 

Williams    v.    Conger,    125    U.    S. 

397  617 


TABLE  OF  CASES. 


XXI 


Williamson    v.    New    Jersey,    130 
U.  S.  189  266 

Willson  V.  Blackbird  Creelc  Marsh 
Co.,  2  Pet.  245  .'599,  454,  461 

Wilson,   Ex  parte,    114   U.   S.  417 

.:')04,  50-5 

Wilson  V.  Gaines,  103  U.  S.  417  266 

Wisconsin     Central     Railroad    v. 
Price,  133  U.  S.  496  266 

Woodruff  w.  Parham,  8  Wall.  123     251, 

463,  591 


PABU 

Woodruff  V.  Trapnall,  10  Wall.  190  58.3 
Worcester  v.  Georgia,  6  Pet.  515  401 
Wurts  V.  Hoagland,  114  U.  S.  606  667 
Yarbrough,  Ex  parte,  110  U.  S.  65  680 
Yazoo  &  Mississippi  Valley  Rail- 
road ij.  Thomas,  132  U.  S.  174  266 
Yerger,  Ex  parte,  8  Wall.  85  344 
Yick  Wo  V.  Hopkins,  118  U.  S.  356 

660,  662 

York  V.  Texas,  137  U.  S.  15  672 


THE  FRAMING  OF  THE  CONSTITUTION. 


^J^cjo 


"We  are  met  here  to  commemorate  an  event  lecture  i. 
in  our  progress,  in  many  respects  inferior  to  ^"*™  uctoryo 
none  in  importance  in  our  own  history  or  in  the 
history  of  the  world.  It  is  the  formation  of  the 
Constitution  of  the  United  States,  which,  on 
this  day,  one  hundred  years  ago,  was  adopted 
by  the  Convention  which  represented  the  iieoiile 
of  the  United  States,  and  w^hich  was  then  signed 
by  the  delegates  w^ho  framed  it,  and  published 
as  the  final  result  of  their  arduous  labors,  —  of 
their  most  careful  and  deliberate  consideration, 
—  and  of  a  love  of  country  as  unmixed  with 
selfishness  as  human  nature  is  capable  of. 

In  looking  at  the  names  of  those  who  signed 
the  instrument,  our  sentiment  of  pious  reverence 
for  the  work  of  their  hands  hardly  permits  us 

1  This  paper,  which  leads  up  to  the  Lectures  delivered  by  Mr. 
Justice  Miller  before  the  classes  in  the  Law  School,  is  in  substance 
the  oration  which  he  delivered  on  the  17th  of  September,  1887,  at 
Philadelphia  at  "the  celebration  of  the  one  hundredth  anniver- 
sary of  the  framing  and  promulgation  of  the  Constitution."  Only 
such  passages  are  omitted  as  treat  of  matters  which  are  again 
discussed  in  the  Lectures. 

1 


2  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkcture  I.  to  discriminate  by  special  mention  of  any.  But 
Introductory.  j^  j^  surely  not  in  bad  taste  to  mention  that  the 
name  of  George  Washington  is  there  as  its  first 
signer,  and  as  president  of  the  convention  ;  the 
man  of  whom  it  was  afterwards  so  happily  de- 
clared by  the  representatives  of  a  grateful  people, 
that  he  was  "  first  in  war,  first  in  peace,  and  first 
in  the  hearts  of  his  countrymen."  He  was  the 
first  man  selected  to  fill  the  Chief  Executive 
office  of  President  created  by  the  Constitution; 
and  James  Madison,  another  name  found  in  the 
list  of  signers,  filled  the  same  office. 

James  Wilson,  of  Pennsylvania,  John  Blair, 
of  Virginia,  and  John  Rutledge,  of  South  Caro- 
lina, were  made  justices  of  the  court  established 
by  that  instrument,  with  a  large  view,  among 
its  other  functions,  of  expounding  its  meaning. 
With  no  invidious  intent  it  may  be  here  said 
that  one  of  the  greatest  names  in  American  his- 
tory —  Alexander  Hamilton  —  is  there  as  repre- 
senting alone  the  important  State  of  New  York ; 
his  colleagues  from  that  State  having  withdrawn 
from  the  convention  before  the  final  vote  on  the 
Constitution.  Nor  is  it  permissible,  standing  in 
this  place  and  in  this  connection,  to  omit  to 
point  to  the  name  of  Benjamin  Franklin,  the 
venerable  philosopher  and  patriot ;  of  Robert 
Morris,  the  financier  of  the  Revolution ;  and 
of  Gouverneur  Morris,  the  brilliant  scholar  and 
profound  statesman. 

It  is  necessary  to  any  just  appreciation  of  the 
Constitution,  whose  presentation  for  acceptance 
to  the  people  of  the  United  States  a  hundred 


FORMATION    OF    THE    CONSTITUTION. 

years  ago  on  this  day  we  comniemorate,  that  lecture  i. 
some  statement  of  its  origin,  and  of  the  causes  ^"^'■"•'"'^^'"■y- 
wliich  led  to  it,  should  be  iftade.     The  occasion 
requires  that  this  shall  be  brief. 

The  war  of  seven  years,  which  was  waged  in  Articles  of  con- 
support  of  the  independence  of  these  States,  ^*^'^"''^*'*'°- 
former  provinces  of  Great  Britain,  —  an  inde- 
pendence announced  by  the  Declaration  of  July 
4,  1776,  already  referred  to,  —  the  war  which 
will  always  be  known  in  the  history  of  this 
country  as  the  war  of  the  Revolution,  was  con- 
ducted by  a  union  of  those  States  under  an 
agreement  between  them  called  Articles  of  Con- 
federation. Under  these  articles  each  State  was 
an  integer  of  equal  dignity  and  power  in  a  body 
called  the  Congress,  which  conducted  the  affairs 
of  the  incipient  nation.  Each  of  the  thirteen 
States  which  composed  this  confederation  sent 
to  Congress  as  many  delegates  as  it  chose,  with- 
out reference  to  its  population,  its  wealth,  or 
the  extent  of  its  territory ;  but  the  vote  upon 
the  passage  of  any  law,  or  resolution,  or  action 
suggested,  was  taken  by  States,  the  members 
from  each  State,  however  numerous  or  however 
small,  constituting  one  vote,  and  a  majority  of 
these  votes  by  States  being  necessary  to  the 
adoption  of  the  proposition. 

The  most  important  matters  on  which  Con-  weakness  of 
gress  acted  were  but  little  else  than  recommen-  tj^^i^ 
dations  to  the   States,  requesting  their  aid   in 
the  general  cause.     There  was  no  power  in  the 
Congress  to  raise  money  by  taxation.     It  could 
declare  by  way  of  assessment  the  amount  each 


LECTURES    ON    CONSTITUTIONAL   LAW. 


Lecture  I.         State  sliould  Contribute  to  the  support  of  the 
Weakness  of        Government,  but  it  had  no  means  of  enforcins; 

Congress  under  ^  •  ^ 

them.  compliance  with  this  assessment.    It  could  make 

requisitions  on  each  State  for  men  for  the  army 
which  was  fighting  for  them  all,  but  the  raising 
of  this  levy  was  wholly  dependent  upon  the 
actioA  of  the  States  respectively.  There  was 
no  authority  to  tax,  or  otherwise  regulate,  the 
import  or  export  of  foreign  goods,  nor  to  pre- 
vent the  separate  States  from  taxing  property 
which  entered  their  ports,  though  the  property 
so  taxed  was  owned  by  citizens  of  other  States. 

The  end  of  this  war  of  the  Revolution,  which 
had  established  our  entire  independence  of  the 
crown  of  Great  Britain,  and  which  had  caused 
us  to  be  recognized  theoretically  as  a  member 
of  the  family  of  nations,  found  us  wdth  an  empty 
treasury,  an  impaired  credit,  a  country  drained 
of  its  wealth  and  impoverished  by  the  exhaustive 
struggle.  It  found  us  with  a  large  national  debt 
to  our  own  citizens  and  to  our  friends  abroad, 
who  had  loaned  us  their  money  in  our  desperate 
strait;  and  worst  of  all,  it  found  us  with  an 
army  of  unpaid  patriotic  soldiers  who  had  en- 
dured every  hardship  that  our  want  of  means 
coidd  add  to  the  necessary  incidents  of  a  civil 
war,  many  of  whom  had  to  return  penniless  to 
families  whose  condition  was  pitiable. 

For  all  these  evils  the  limited  and  imperfect 
powers  conferred  by  the  Articles  of  Confedera- 
tion afforded  no  adequate  remedy.  The  Con- 
gress, in  which  was  vested  all  the  authority  that 
those  articles  granted   to  the  General  Govern- 


FOKMATION    OF    THE    CONSTITUTION.  6 

ment,  struggled   hopelessly  and    with    constant  lecture  i. 
failure  from  the  treaty  of  peace  with  Eno;land,  J!^^^"^^^"^, 

"^      ,     ^  o  7  Congress  under 

in  1783,  until  the  formation  of  the  new  Consti-  tbem. 
tution.  Many  suggestions  were  made  for  en- 
larging the  powers  of  the  Federal  Government 
in  regard  to  particular  subjects.  None  were 
successful,  and  none  proposed  the  only  true 
remedy,  namely,  authority  in  the  National  Gov- 
ernment to  enforce  the  powers  which  were  en- 
trusted to  it  by  the  Articles  of  Confederation,  by 
its  own  immediate  and  direct  action  on  the  peo- 
ple of  the  States. 

It  is  not  a  little  remarkable  that  the  sugges-  Causes  which 
tion  which  finally  led  to  the  relief,  without  wliich  ^'^  '^  ^  '^"''^'^• 
as  a  nation  we  must  soon  have  perished,  strongly 
supports  the  philosophical  maxim  of  modern 
times,  —  that  of  all  the  agencies  of  civilization 
and  progress  of  the  human  race,  commerce  is  the 
most  efficient.  What  our  deranged  finances,  our 
discreditable  failure  to  pay  our  debts,  and  the 
sufferings  of  our  soldiers  could  not  force  the 
several  States  of  the  American  Union  to  attempt, 
was  brought  about  by  a  desire  to  be  released 
from  the  evils  of  an  unregulated  and  burden- 
some commercial  intercourse,  both  with  foreign 
nations  and  between  the  several  States. 

After  many  resolutions  by  State  legislatures  Action  of  vir- 
which  led  to  nothing,  one  was  introduced  by  ^'°**' 
Mr.  Madison  into  that  of  Virginia,  and  passed 
on  the  twenty-first  day  of  February,  1786,  which 
appointed  Edmund  Randolph,  James  Madison 
Jr.,  and  six  others,  commissioners,  "  to  meet  such 
commissioners    as   may  be   appointed  by  other 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lectuuk  I. 
Action  of  Vir- 
ginia. 


The  Annapolis 
Couventiou. 


Congress  reluc- 
tant to  act. 


States  in  the  Union,  at  a  time  and  place  to  be 
aoreecl,  to  take  into  consideration  the  trade  of 
the  United  States ;  to  examine  the  relative  situ- 
ation and  trade  of  the  said  States ;  to  consider 
how  far  a  uniform  system  in  their  commercial 
regulations  may  be  necessary  to  their  common 
interest  and  their  permanent  harmony." 

This  committee  was  directed  to  transmit  copies 
of  the  resolution  to  the  several  States,  with  a 
letter  requesting  their  concurrence,  and  propos- 
ing a  time  and  place  for  the  meeting.  The  time 
agreed  upon  was  in  September,  1786,  and  the 
place  was  Annapolis.  Nine  States  appointed 
delegates,  but  those  of  five  States  only  attended. 
These  were  New  York,  New  Jersey,  Pennsyl- 
vania, Virginia,  and  Delaware.  Four  other 
States  appointed  delegates  who,  for  various  rea- 
sons, did  not  appear,  or  came  too  late.  Of  course 
such  a  convention  as  this  could  do  little  but 
make  recommendations.  What  it  did  was  to 
suggest  a  convention  of  delegates  from  all  the 
States,  "  to  devise  such  further  provisions  as 
might  appear  to  be  necessary  to  render  the  Con- 
stitution of  the  Federal  Government  adequate 
to  the  exigencies  of  the  Union."  It  also  pro- 
posed that  whatever  should  be  agreed  upon  by 
such  a  convention  should  be  reported  to  Con- 
gress, and  confirmed  by  the  legislatures  of  all 
the  States. 

This  resolution  and  an  accompanying  report 
were  presented  to  Congress,  which  manifested 
much  reluctance  and  a  very  unreasonable  delay 
in  acting  upon  it,  and  a  want  of  any  earnest 


FORMATION    OF    THE    CONSTITUTION.  7 

approval  of  the  plan.  But  the  proceedings  of  lecture  i. 
the  Annapolis  convention  had  been  laid  before  ta°nTto  act^  "^ 
the  legislatures  of  the  States,  where  they  met 
with  a  more  cordial  reception,  and  the  action  of 
several  of  them  in  approving  the  recommenda- 
tion for  a  convention,  and  appointing  delegates 
to  attend  it,  finally  overcame  the  hesitation  of 
Congress.  That  body,  accordingly,  on  the  21st 
of  February,  1787,  resolved  that,  in  its  opinion, 
"  it  was  expedient  that  on  the  second  Monday  it  acts  favorably. 
in  May  next,  a  convention  of  delegates,  who 
shall  have  been  appointed  by  the  several  States, 
be  held  at  Philadelphia,  for  the  sole  and  express 
purpose  of  revising  the  Articles  of  Confedera- 
tion, and  reporting  to  Congress  and  the  several 
legislatures  such  alterations  and  provisions  there- 
in as  shall,  when  agreed  to  in  Congress,  and 
confirmed  by  the  States,  render  the  Federal  Con- 
stitution adequate  to  the  exigencies  of  govern- 
ment and  the  preservation  of  the  Union." 

On  the  day  thus  recommended,  —  May  14th,  The  convention 
—  delegates  from  Virginia  and  Pennsylvania™®^*^* 
met  and  adjourned  from  day  to  day  until  the 
25th,  during  which  period  delegates  from  other 
States  made  their  appearance.  On  that  day  the 
delegates  of  seven  States,  duly  appointed,  being 
present,  the  convention  was  organized  by  the 
election  of  General  Washington  as  its  president, 
at  the  sua;o;estion  of  Franklin.  On  the  28th  the 
representation  in  the  convention  was  increased 
to  nine  States ;  and  on  the  29th  Edmund  Ran- 
dolph, delegate  from  Virginia,  and  governor  of 
that  State,  inaugurated  the  work  of  the  conven- 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lkcture  I. 

The  Conv(!ntion 

meets. 

It  frames  tlie 

Constitution. 


Rhode  Island  not 
represented. 


Reasons  for  it. 


tion  by  a  speech  in  wliicli  he  presented  an  out- 
line of  a  constitution  for  its  consideration. 

From  this  time  on,  the  convention  labored 
assiduously  and  without  intermission,  until,  on 
the  seventeenth  day  of  September,  one  hundred 
years  ago,  it  closed  its  work  by  presenting  a 
completed  instrument,  which,  being  subsequently 
ratified  by  the  States,  became  the  Constitution 
of  the  United  States  of  America. 

All  the  States  except  Rhode  Island  were  finally 
represented  in  the  convention  and  took  part  in 
framing  the  instrument,  a  majority  of  the  dele- 
gates of  each  State  assenting  to  it.  That  State 
sent  no  delegate  to  the  convention ;  and  when 
the  Constitution  was  presented  to  it  for  ratifica- 
tion no  convention  w^as  called  for  that  purpose 
until  after  it  had  gone  into  operation  as  the 
organic  law  of  the  National  Government.  It 
was  two  years  before  she  accepted  it  and  became 
in  reality  a  State  of  the  Union. 

It  is  a  matter  for  profound  reflection  by  the 
pliilosophical  statesman,  that,  while  the  most 
efficient  motive  in  bringing  the  other  States 
into  this  convention  was  a  desire  to  amend  the 
situation  in  regard  to  trade  among  the  States, 
and  to  secure  a  uniform  system  of  commercial 
regulation,  as  necessary  to  the  common  interest 
and  permanent  harmony,  the  course  of  Rhode 
Island  was  mainly  governed  by  the,  considera- 
tion that  her  superior  advantages  of  location, 
and  the  possession  of  what  was  supposed  to  be 
the  best  harbor  on  the  Atlantic  coast,  should  not 
be  subjected  to  the  control  of  a  Congress  which 


FORMATION    OF    THE    CONSTITUTION.  t 

was   by  that    instrument   expressly   authorized  lecture  i. 

,,  ,  1    .  •  1 1     J*        •  J  •  1  Reasons  for  it. 

"to  regulate  commerce  with  loreign  nations  and 
among  the  several  States,"  and  which  also  de- 
clared that  "  no  preference  shall  be  given  by 
any  regulation  of  commerce  or  revenue  to  the 
ports  of  one  State  over  those  of  another,  nor 
any  vessel  bound  to  or  from  one  State  be  obliged 
to  enter,  clear,  or  pay  duties  in  another." 

That  the  s^^irit  which  actuated  Rhode  Island 
still  exists,  and  is  found  in  other  States  of  the 
Union,  may  be  inferred  from  the  fact  that  at  no 
time  since  the  formation  of  the  Union  has  there 
been  a  period  when  there  were  not  to  be  found 
in  the  statute-books  of  some  of  the  States  acts 
passed  in  violation  of  this  provision  of  the  Con- 
stitution, imposing  taxes  and  other  burdens  upon 
the  free  interchange  of  commodities,  discrimi- 
nating against  the  productions  of  other  States, 
and  attempting  to  establish  regulations  of  com- 
merce, which  the  Constitution  says  shall  only  be 
done  by  the  Congress  of  the  Vnited  States. 

During  the  session  of  the  Supreme  Court 
which  ended  in  May  last  ^  no  less  than  four  or 
five  decisions  of  the  highest  importance  were 
rendered,  declaring  statutes  of  as  many  differ- 
ent States  to  be  void,  because  they  were  forbid- 
den by  this  provision  of  the  Federal  Constitution. 

We  need  not  here  pursue  the  detailed  history  The  constitution 
of  the  ratification  and  adoption  of  the  Constitu-  ^^'^epted. 
tioii  by  the  States.     The  instrument  itself,  and 
the  resolution  of  Congress  submitting  it  to  the 

1  October  Term,  1886.     118  U.  S.-122  U.  S. 


10  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  I.         States,  both  provided  that   it   should   go   into 

The  Constitution  ,  •  i  ij.ii  •         Ol    j.  Tr>^ 

accepted  Operation  when  adopted  by  nine  fetates.     iideven 

of  thein  accepted  it  in  their  first  action  in  the 
matter.  North  Carolina  delayed  a  short  time, 
and  Rhode  Island  two  years  later  changed  her 
mind ;  and  thus  the  thirteen  States  which  had 
united  in  the  struggle  for  independence  became 
a  nation  under  this  form  of  government. 

And  transmitted  Let  US   COUsidcr   UOW  tllC   task  wllicll    the   con- 

to  Congress,  vention  undertook  to  perform,  the  difficulties 
which  lay  in  its  way,  and  the  success  which 
attended  its  efforts.  In  submitting  to  Congress 
the  result  of  their  labors,  the  convention  accom- 
panied the  instrument  with  a  letter  signed  under 
its  authority  by  its  president,  and  addressed  to 
the  President  of  Congress.  Perhaps  no  public 
document  of  the  times  so  short,  yet  so  impor- 
tant, is  better  worth  consideration  than  this  let- 
ter, dated  September  17,  1787.  From  it  I 
must  beg  your  indulgence  to  read  the  follow- 
ing extracts  :  —    , 

"  Sir  :  — We  now  have  the  honor  to  submit  to 
the  consideration  of  the  United  States  in  Con- 
gress assembled  that  Constitution  which  has 
appeared  to  us  the  most  advisable.  The  friends 
of  our  country  have  long  seen  and  desired  that 
the  power  of  making  war,  peace,  and  treaties, 
that  of  levying  money  and  regulating  com- 
merce, and  the  correspondent  executive  and 
judicial  authorities,  should  be  fully  and  effectu- 
ally vested  in  the  general  government  of  the 
Union ;  but  the  impropriety  of  delegating  such 
extensive  trusts  to  one  body  of  men  "  (meaning 


FORMATION    OF    THE    CONSTITUTION.  11 

Congress)  "  is  evident.    Hence  results  the  neces-  lecture  i. 

c  T  p..  ,  •       ,  •  Tx   •        1      •         1      And  transmitted 

sity  01  a  dirterent  organization,     it  is  obviously  ^^^  Congress, 
impracticable  in  the  federal  government  of  these 
States  to  secure  all  the  rights  of  independent 
sovereignty   to  each,   and  yet  provide  for   the 
interests  and  safety  of  all."     Again:  — 

"  In  all  our  deliberations  on  this  subject  we 
kept  steadily  in  view  that  which  appears  to  us 
the  greatest  interest  of  every  true  American, 
—  the  consolidation  of  our  Union,  in  which  is 
involved  our  prosperity,  felicity,  safety,  perhaps 
our  national  existence.  This  important  consid- 
eration, seriously  and  deeply  impressed  on  our 
minds,  led  each  State  in  the  convention  to  be 
less  rigid  on  points  of  inferior  magnitude  than 
might  otherwise  be  expected  ;  and  thus  the  Con- 
stitution which  we  now  present  is  the  result  of 
a  spirit  of  amity,  and  of  that  natural  deference 
and  concession  which  the  peculiarity  of  our  polit- 
ical situation  rendered  indispensable." 

The  instrument  framed  under  the  influence  of 
these  principles  is  introduced  by  language  very 
similar.  The  opening  sentence  reads  :  "  We, 
the  people  of  the  United  States,  in  order  to  form 
a  more  perfect  union,  establish  justice,  insure 
domestic  tranquillity,  provide  for  the  common 
defence,  promote  the  general  welfare,  and  secure 
the  blessings  of  liberty  to  ourselves  and  our  pos- 
terity, do  ordain  and  establish  this  Constitution 
for  the  United  States  of  America." 

This    Constitution    has    been    tested    by   the  Opposition  to  it. 
experience   of  a  century  of  its   operation,   and 
in  the  light  of  this  experience  it  may  be  well 


12  LECTUKES    ON    CONSTITUTIONAL    LAW. 

Lecture  I.         to  coiisider   its  valuG.      Many  of  its   most   im- 
Opposition  to  it.    poj.^.^^^^,  features  met  with  earnest  and  vigorous 
opposition.     This  opposition  was  shown  in  the 
convention  which  presented   it,  and  tlie  conven- 
tions of  the  States  called  to  ratify  it.     In  both, 
the  struggle  in  its  favor  was  arduous  and  doubt- 
ful, the  opposition  able  and  active. 
Objections  urged       Perhaps  the  wisdom  of  this  great  instrument 
against  It.  canuot  be  better  seen  than  by  reconsidering  at 

this  time  some  of  the  most  important  objections 
then  made  to  it.  One  of  these  which  caused  the 
opposition  of  several  delegates  in  the  Constitu- 
tional Convention,  and  their  refusal  to  sign  it, 
was  the  want  of  a  well-defined  bill  of  rights. 
The  royal  charters  of  many  of  the  colonies,  and 
the  constitutions  adopted  by  several  States  after 
the  revolt,  had  such  declarations,  mainly  asser- 
tions of  personal  rights  and  of  propositions  in- 
tended to  give  security  to  the  individual  in  his 
right  of  person  and  property  against  the  exer- 
cise of  authority  by  governing  bodies  of  the 
State.  The  Constitution  was  not  void  of  such 
protection.  It  provided  for  the  great  writ  of 
habeas  corpus,  the  means  by  which  all  unlawful 
imprisonments  and  restraints  upon  personal  lib- 
erty had  been  removed  in  the  English  and 
American  courts  since  Magna  Charta  was  pro- 
claimed ;  and  it  declared  that  the  privilege  of 
that  writ  should  -not  be  suspended,  unless  in 
cases  of  rebellion  or  invasion  the  public  safety 
should  require  it.  The  Constitution  also  de- 
clared that  no  ex  post  facto  law  or  bill  of 
attainder  should  be  passed  by  Congress ;    and 


FORMATION    OF    THE    CONSTITUTION.  13 

no  law  impairing  the  obligation  of  contracts  by  lecture  i. 
any  State.  It  secured  the  trial  by  jury  of  all  "^^^^  "^'^ 
crimes  within  the  State  where  the  offence  was 
committed.  It  defined  treason  so  as  to  require 
some  overt  act,  which  must  be  proved  by  two 
witnesses,  or  confessed  in  open  court,  for  con- 
viction. 

It  can  hardly  be  said  that  experience  has 
demonstrated  tlie  sufficiency  of  these  for  the 
purpose  which  the  advocates  of  a  bill  of  rights 
had  in  view,  because,  upon  the  recommendation 
of  several  of  the  States  made  in  the  act  of  rati- 
fying the  Constitution,  or  by  legislatures  at  their 
first  meeting  subsequently,  twelve  amendments 
were  proposed  by  Congress,  ten  of  which  were 
immediately  ratified  by  the  requisite  number  of 
States,  and  became  part  of  the  Constitution 
within  two  or  three  years  of  its  adoption. 

In  the  presentation  and  ratification  of  these 
amendments,  the  advocates  of  a  specific  bill  of 
rights,  and  those  who  were  dissatisfied  with  the 
strong  power  conferred  on  the  Federal  Govern- 
ment, united  ;  and  many  statesmen  who  leaned 
to  a  strono;  o-overnment  for  the  nation  were  will- 
ing,  now  that  the  Government  was  established, 
to  win  to  its  favor  those  who  distrusted  it  by 
the  adoption  of  these  amendments.  Hence  a 
very  slight  examination  of  them  shows  that 
all  of  them  are  restrictions  iipon  the  power  of 
the  General  Government,  or  upon  the  modes  of 
exercising  that  power,  or  declarations  of  the 
powers  remaining  with  the  States  and  with  the 
people.     They  establish  certain  private  rights  of 


14  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  l         persons  and  property  which  the  General  Govern- 
objoctions  urged  ^^^^^^^  ^         ^^^^  violato.     As  regards  these  hist, 

against  it.  "^  »    .  .  , 

it  is  not  believed  that  any  acts  of  intentional 
oppression  by  the  Government  of  the  United 
States  have  called  for  serious  reprehension ;  but, 
on  the  contrary,  history  points  us  to  no  govern- 
ment in  which  the  freedom  of  the  citizen  and 
the  rights  of  property  have  been  better  protected 
and  life  and  liberty  more  firmly  secured. 

As  regards  the  question  of  the  relative  dis- 
tribution of  the  powers  necessary  to  organized 
society,  between  the  Federal  and  State  govern- 
ments, more  will  be  said  hereafter. 

As  soon  as  it  became  apparent  to  the  con- 
vention that  the  new  government  must  be  a 
nation,  resting  for  its  support  upon  the  people 
over  whom  it  exercised  authority,  and  not  a 
league  of  independent  States,  brought  together 
under  a  compact  on  which  each  State  should 
place  its  own  construction,  the  question  of  the 
relative  power  of  those  States  in  the  new  gov- 
ernment became  a  subject  of  serious  difference. 
There  were  those  in  the  convention  who  insisted 
that  in  the  legislative  body,  where  the  most 
important  powers  must  necessarily  reside,  the 
States  should,  as  in  the  Articles  of  Confederation, 
stand  upon  a  perfect  equality,  each  State  hav- 
ing but  one  vote ;  and  this  feature  was  finally 
retained  in  that  part  of  the  Constitution  which 
vested  in  Congress  the  election  of  the  President, 
when  there  should  be  a  failure  to  elect  by  the 
electoral  college  in  the  regular  mode  prescribed 
by  that  instrument.     The  contest  in  the  conven- 


FORMATION    OF    THE    CONSTITUTION.  15 

tion  beccame  narrowed  to  the  composition  of  the  lf.cturk  i. 
Senate,  after  it  had  been   determined  that  the  ♦^"J«^^|°"«  ""'sed 

'  ^  against  it. 

legislature  should  consist  of  two  distinct  bodies, 
sitting  apart  from  each  other,  and  voting  sepa- 
rately. One  of  these  was  to  be  a  popular  body, 
elected  directly  by  the  people  at  short  intervals. 
The  other  was  to  be  a  body  more  limited  in 
numbers,  with  longer  terms  of  office ;  and  this, 
with  the  manner  of  their  appointment,  was 
designed  to  give  stability  to  the  policy  of  the 
Government,  and  to  be  in  some  sense  a  restraint 
upon  sudden  impulses  of  popular  will. 

With  regard  to  the  popular  branch  of  the 
legislature,  there  did  not  seem  to  be  much  diffi- 
culty in  establishing  the  proposition,  that  in 
some  general  way  each  State  should  be  repre- 
sented in  it  in  proportion  to  its  population,  and 
that  each  member  of  the  body  should  vote  with 
equal  effect  on  all  questions  before  it.  But 
when  it  was  sought  by  the  larger  and  more 
populous  States,  as  Virginia,  Pennsylvania,  and 
Massachusetts,  to  apply  this  principle  to  the 
composition  of  the  Senate,  the  resistance  of  the 
smaller  States  became  stubborn,  and  they  refused 
to  yield.  The  feeling  arising  under  the  discus- 
sion of  this  subject  came  nearer  causing  the 
disruption  of  the  convention  than  any  which 
agitated  its  deliberations.  It  was  finally  settled 
by  an  agreement  that  every  State,  however  small, 
should  have  two  representatives  in  the  Senate  of 
the  United  States,  and  no  State  should  have  any 
more ;  and  that  no  amendment  of  the  Constitu- 
tion should  deprive  any  State  of  its  equal  suf- 


16  LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  I.         fragc  ill  tliG  Senate  without  its  consent.     As  the 
objoctions  urged  g(3j-^.^^e  j^^s  the  Same  power  in  enactini^  laws  as 

against  it.  •  i  i       < 

the  House  of  Representatives,  and  as  each  State 
has  its  two  votes  in  that  body,  it  will  be  seen 
that  the  smaller  States  secured,  when  they  are 
in  a  united  majority,  the  practical  power  of 
defeating  all  legislation  which  was  unacceptable 
to  them. 

What  has  the  experience  of  a  century  taught 
us  on  this  question  ?  It  is  certainly  true  that 
there  have  been  many  expressions  of  dissatisfac- 
tion with  the  operation  of  a  principle  which 
gives  to  each  of  the  six  New  England  States, 
situated  compactly  together,  as  much  power  in 
the  Senate  in  making  laws,  in  ratifying  treaties, 
and  in  confirming  or  rejecting  appointments  to 
office,  as  is  given  to  the  great  State  of  New 
York,  which,  both  in  population  and  wealth, 
exceeds  all  the  New  England  States,  and  nearly 
if  not  quite  equals  them  in  territory. 

But  if  we  are  to  form  an  opinion  from  demon- 
strations against,  or  attempts  to  modify,  this 
feature  of  the  Constitution,  or  any  feature 
which  concerns  exclusively  the  functions  of  the 
Senate,  we  shall  be  compelled  to  say  that  the 
ablest  of  our  public  men,  and  the  wisdom  of  the 
nation,  are  in  the  main  satisfied  with  the  work 
of  the  convention  on  this  point  after  a  hundred 
years  of  observation.  And  it  is  believed  that  the 
existence  of  an  important  body  in  our  system  of 
government,  not  wholly  the  mere  representative 
of  population,  has  exercised  a  v/holesome  con- 
servatism on  many  occasions  in  our  history. 


rORMATION    OF    THE    CONSTITUTION.  17 

Another  feature    of   the    Constitution   which  lecture  i. 
met  with  earnest  opposition  was  the  vesting  of  ^^^J.*^'^*'""'*  '""s^'^ 

^  ^  _  ^  agaiust  It. 

the  executive  power  in  a  single  magistrate. 
While  Hamilton  would  have  preferred  a  mon- 
arch, with  strong  restriction  on  his  authority, 
like  that  in  England,  he  soon  saw  that  even  his 
great  influence  could  not  carry  the  convention 
with  him.  There  were  not  a  few  members  who 
preferred  in  that  matter  the  system  of  a  single 
body  (as  the  Congress)  in  which  should  be 
reposed  all  the  power  of  the  nation,  or  a  coun- 
cil, or  executive  committee,  appointed  by  that 
body  and  responsible  to  it.  There  were  others 
who  preferred  an  executive  council  of  several 
members,  not  owing  its  appointment  to  Con- 
gress. 

It  was  urged  against  our  Constitution  by 
many  liberty-loving  men,  both  in  the  convention 
and  out  of  it,  that  it  conferred  upon  the  execu- 
tive, a  single  individual,  whose  election  for  a 
term  of  four  years  was  carefully  removed  from 
the  direct  vote  of  the  people,  powers  dangerous 
to  the  existence  of  free  government.  It  was 
said  that  with  the  appointment  of  all  the  officers 
of  the  Government,  civil  and  military,  the  sword 
and  the  purse  of  the  nation  in  his  hands,  the 
power  to  prevent  the  enactment  of  laws  to 
which  he  did  not  assent,  —  unless  they  could  be 
passed  over  his  objection  by  a  vote  of  two-thirds 
in  each  of  the  two  legislative  houses,  —  and  the 
actual  use  of  this  power  for  four  years  without 
interruption,  an  ambitious  man,  of  great  per- 
sonal popularity,  could  establish  his  power  dur- 


18  LECTURES    ON  CONSTITUTIONAL    LAW. 

Lecture  I.         ing  liis  owii  life  and  transmit  it  to  his  family  as 
Objections  urged  ^  perpetual  dynastv. 

against  it.  i       i  ^  ^    ^         ^ 

Perhaps  of  all  objections  made  to  important 
features  of  the  Constitution  this  one  had  more 
plausibility,  and  was  urged  with  most  force. 
But  if  the  century  of  our  experience  has  demon- 
strated anything,  it  is  the  fallacy  of  this  objec- 
tion and  of  all  the  reasons  urged  in  its  support. 

The  objection  that  the  electoral  college  was  a 
contrivance  to  remove  the  appointment  of  the 
President  from  the  control  of  popular  suffrage, 
was,  if  it  had  any  merit,  speedily  overcome 
without  any  infraction  of  tlie  Constitution  by 
the  democratic  tendencies  of  the  people.  The 
electors  composing  the  college,  who,  it  was  sup- 
posed, would  each  exercise  an  independent  judg- 
ment in  casting  his  vote  for  President,  soon 
came  to  be  elected  themselves  on  distinct 
pledges  made  beforehand,  that  they  would  vote 
for  some  person  designated  as  a  popular  favorite 
for  that  office.  So  that  at  the  present  time  the 
electors  of  each  State,  in  sending  to  the  capital 
their  votes  for  President,  do  but  record  the  in- 
struction of  a  majority  of  the  citizens  voting  in 
that  State.  The  term  of  four  years  for  the 
Presidential  ofhce  is  not  now  deemed  too  long 
hy  any  one,  while  there  are  many  who  would 
desire  that  it  should  be  made  longer,  say  seven 
or  ten  years. 

The  power  of  appointment  to  office  requires 
the  consent  of  the  Senate  to  its  exercise ;  and 
that  body  has  asserted  its  right  of  refusing  that 
assent  so  courageously  and  so  freely,  that  there 


FORMATION    OF    THE    CONSTITUTION.  19 

can  be  no  real  fear  of  its  successful  use  by  the  lecture  i. 
President  in  a  manner  to  endanger  the  liberty  aga^nsut!  ^^^^ 
of  the  country,  unless  the  Senate  itself  shall  be 
utterly  corrupted.  •  Nor  can  the  means  for  such 
corruption  be  obtained  from  the  public  treasury, 
unless  Congress  in  both  branches  shall  become 
so  degenerate  as  to  consent  to  such  use. 

Nor  have  we  had  in  this  country  any  want  of 
ambitious  men,  who  have  earnestly  desired  the 
Presidency,  or,  having  it  once,  have  longed  for 
a  continuation  of  it  at  tlie  end  of  the  lawful 
term.  x'Vnd  it  may  be  said  that  it  is  almost  a 
custom  when  a  President  has  filled  his  office  for 
one  term  acceptably,  that  he  is  to  be  re-elected, 
if  his  political  party  continues  to  be  a  popular 
majority.  Our  people  have  also  shown  the 
usual  hero-worship  of  successful  military  chief- 
tains, and  rewarded  them  by  election  to  the 
Presidency.  In  proof  of  this  it  is  only  neces- 
sary to  mention  the  names  .of  Washington, 
Jackson,  Harrison,  Taylor,  and  Grant.  In 
some  of  them  there  has  been  no  want  of  ambi- 
tion, nor  of  the  domineering  disposition,  which 
is  often  engendered  by  the  use  of  military 
power.  Yet  none  of  these  men  have  had  more 
than  two  terms  of  the  office.  And  though  a 
few  years  ago  one  of  the  most  largely  circulated 
newspapers  of  the  United  States  wrote  in  its 
paper  day  after  day  articles  headed  "  Cassarism," 
charging  danger  to  the  republic  from  one  of  its 
greatest  benefactors  and  military  chiefs,  it  ex- 
cited no  attention  but  derision,  and  deserved  no 
other. 


20  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  I.  There  is  no  danger  in  this  country  from  the 

agiinstT  "'^''*  power  reposed  in  the  Presidential  office.  There 
is,  as  sad  experience  shows,  far,  far  more  danger 
from  nihiUsm  and  assassinatj^n,  than  from  am- 
bition in  our  pubHc  servants. 

So  far  have  the  incumbents  of  the  Presidency, 
during  the  hundred  years  of  its  history,  been 
from  grasping,  or  attempting  to  grasp,  powers 
not  warranted  by  the  Constitution,  and  so  far 
from  exercising  the  admitted  power  of  that  office 
in  a  despotic  manner,  that  a  candid  student  of 
our  political  history  during  that  time  cannot  fail 
to  perceive  that  no  one  of  the  three  great  depart- 
ments of  the  Government  —  the  Legislative,  the 
Executive,  and  the  Judicial  —  has  been  more 
shorn  of  its  just  powers,  or  crippled  in  the 
exercise  of  them,  than  the  Presidency. 

In  regard  to  the  function  of  appointment  to 
office,  —  perhaps  the  most  important  of  the  ex- 
ecutive duties,  —  the  spirit  of  the  Constitution 
requires  that  the  President  shall  exercise  freely 
his  best  judgment  and  follow  his  most  sincere 
conviction  in  selecting  proper  men. 

It  is  undeniable  that  for  many  years  past,  by 
the  gradual  growth  of  custom,  it  has  come  to 
pass  that  in  the  nomination  of  officers  by  the 
President,  he  has  so  far  submitted  to  be  governed 
by  the  wishes  and  recommendations  of  interested 
members  of  the  two  Houses  of  Congress,  that  the 
purpose  of  the  Constitution  in  vesting  this  power 
in  him,  and  the  right  of  the  public  to  hold  him 
personally  responsible  for  each  and  every  ap- 
pointment he  makes,  are  largely  defeated.     In 


FORMATIOIS'    OF    THE    CONSTITUTION.  21 


other  words,  the  great  principle  lying  at  the  lecture  i. 

Objections 
agaiust  it. 


foundation  of  all  free  governments,  that  the  leg-     *"''"  '""**  ^^^^ 


islative  and  executive  departments  shall  be  kept 
separate,  is  invaded  by  the  participation  of 
members  *  of  Congress  in  the  exercise  of  the 
appointing  power. 

History  teaches  us  in  no  mistaken  language 
how  often  customs  and  practices,  which  were 
originated  without  lawful  warrant  and  opposed 
to  the  sound  construction  of  the  law,  have  come 
to  overload  and  pervert  it ;  as  commentators  on 
the  text  of  Holy  Scripture  have  established  doc- 
trines wholly  at  variance  with  its  true  spirit. 

Without  considering  many  minor  objections 
made  to  the  Constitution  during  the  process  of 
its  formation  and  adoption,  let  us  proceed  to 
that  one  which  was  the  central  point  of  contest 
then,  and  which,  transferred  to  the  question  of 
construing  that  instrument,  has  continued  to 
divide  statesmen  and  politicians  to  the  present 
time. 

The  convention  was  divided  in  opinion  between 
those  who  desired  a  strong  national  government, 
capable  of  sustaining  itself  by  the  exercise  of 
suitable  powers,  and  invested  by  the  Constitu- 
tion with  such  powers,  and  those  who,  regarding 
the  Articles  of  Confederation  as  a  basis,  proposed 
to  strengthen  the  General  Government  in  a  very 
few  particulars,  leaving  it  chiefly  dependent  on 
the  action  of  the  States  themselves  for  its  sup- 
port and  for  the  enforcement  of  its  laws. 

Let  us  deal  tenderly  with  the  Articles  of  Con- y^*^"^^^^  ^'^' 

'^  _  _  Articles  of 

federation.      We  should  here,  on  this  glorious  confederation. 


22  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  I.         anniversary,  feel  grateful  for  any  instrumentality 
TrulTof"^'^'  which  helped  us  in  the  days  of  our  earliest  strug- 
Confederatiou.      gle.     Very  few  are  now  found  to  say  anything 
for  these  Articles,  yet  tliey  constituted  the  nom- 
inal bond  which  held  the  States  together  during 
the  war  of  independence.     It  must  be  confessed 
that  the  sense  of  a  common  cause  and  a  common 
danger  probably  did  more  to  produce  this  united 
effort  than  any  other  motives.      But  the  Arti- 
cles served  their  purpose  for  the  occasion ;  and 
though,  when  the  pressure  of  imminent  danger 
was  removed,  they  were  soon  discovered  to  be  a 
rope  of  sand,  let  them  rest  in  a  peaceful,  honor- 
able remembrance. 
Federal  and  State-      Between  tliose  who  favorcd  a  strong  govern- 
Risht  principles         ^^     f  ^^iQ  Uuiou  and  thosc  who  were  willing 

of  Construction.  o 

to  grant  it  but  little  power  at  the  expense  of  the 
States,  there  were  various  shades  of  opinion ; 
and  while  it  was  the  prevailing  sentiment  of  the 
convention  that  "  the  greatest  interest  of  every 
true  American  was  the  consolidation  of  the 
Union,"  there  were  many  who  were  unwilling 
to  attain  this  object  by  detaching  the  necessary 
powers  from  the  States  and  conferring  them  on 
the  National  Government. 

These  divergent  views  had  their  effect,  both 
in  the  constitutional  convention  and  in  those 
held  for  its  ratification.  Around  this  central 
point  the  contention  raged,  and  it  was  only  by 
compromises  and  concessions,  dictated  by  the 
necessity  of  each  yielding  something  for  the 
common  good,  —  so  touchingly  mentioned  in 
the  letter  of  the  convention  to  Congress,  —  that 


FOEMATION    OF    THE    CONSTITUTION.  23 

the  result  was  finally  reached.     The  patriotism  lecture  i. 

d.ii  £  ■l'^       ±         £  1  J.  T      Federal  and  State 

the  love  or  liberty  oi  each  party  were  imdis-  j,j,,j^^  principles 

puted.  The  anxiety  for  a  government  which  oi  construction.- 
would  best  reconcile  the  possession  of  powers 
essential  to  the  State  governments  with  those 
necessary  to  the  existence  and  efficiency  of  the 
government  of  the  Union,  was  equal ;  and  the 
long  struggle  since  the  adoption  of  the  Consti- 
tution, on  the  same  line  of  thought,  in  its  con- 
struction, shows  how  firmly  these  different  views 
were  imbedded  in  our  political  theories. 

The  party  which  came  to  be  called  the  party 
of  State's  Rights  has  always  dreaded  that  the 
alleged  supremacy  of  the  national  power  would 
overthrow  the  State  governments,  or  control 
them  to  an  extent  incompatible  with  any  useful 
existence.  Their  opponents  have  been  equally 
confident  #that  powers  essential  to  the  successful 
conduct  of  the  General  Government,  which  either 
expressly  or  by  implication  are  conferred  on  it 
by  the  Constitution,  were  denied  to  it  by  the 
principles  of  the  State's  Right  party.  The  one 
believed  in  danger  to  the  States,  from  the  theory 
which  construed  with  a  free  and  liberal  rule  the 
grants  of  power  to  the  General  Government,  and 
the  other  believed  that  such  a  construction  of 
the  Constitution  was  consistent  with  the  purpose 
and  spirit  of  that  instrument,  and  essential  to 
the  perpetuity  of  the  nation. 

If  experience  can  teach  anything  on  the  sub- 
ject of  theories  of  government,  the  late  civil  war 
teaches  unmistakably  that  those  who  believed 
the  source  of  danger  to  be  in  the  strong  powers 


24  LECTURES    ON    CONSTITUTIONAL    LAW. 

LEf  TURF,  I.         of  the  Federal  Government  were  in  error,  and 
Fe.ierahind  state  ^^^^^  ^j^^^^  ^^j^,^  believed  that  such  powers  were 

of  coiistnu-tioii.  necessary  to  its  safe  conduct  and  continued 
existence  were  in  the  right.  The  attempted  de- 
struction of  the  Union  by  eleven  States,  which 
were  part  of  it,  and  the  apparent  temporary  suc- 
cess of  the  effort,  were  undoubtedly  due  to  the 
capacity  of  the  States  under  the  Constitution  for 
concerted  action,  by  organized  movements,  with 
all  the  machinery  ready  at  hand  to  raise  armies 
and  establish  a  central  government.  And  the 
ultimate  failure  of  the  attempt  is  to  be  attributed 
with  equal  clearness  to  the  exercise  of  those 
powers  of  the  General  Government,  under  the 
Constitution,  which  were  denied  to  it  by  extreme 
advocates  of  State  Rights.  And  that  this  might 
no  longer  be  matter  of  dispute,  three  new  amend- 
ments to  the  Constitution  were  adopted  at  the 
close  of  that  struggle,  which,  while  keeping  in 
view  the  principles  of  our  complex  form  of  State 
and  Federal  government,  and  seeking  to  disturb 
the  distribution  of  powers  among  them  as  little 
as  was  consistent  with  the  wisdom  acquired  by 
a  sorrowful  experience,  confer  additional  powers 
on  the  government  of  the  Union,  and  place  addi- 
tional restraints  upon  those  of  the  States.  May 
it  be  long  before  such  an  awful  lesson  is  again 
needed  to  decide  upon  disputed  questions  of  con- 
stitutional law. 

It  is  not  out  of  phice  to  remark  that,  while 
the  pendulum  of  public  opinion  has  swung  with 
much  force  away  from  the  extreme  point  of 
State's  Right  doctrine,  there   may  be  danger  of 


FORMATION    OF    THE    CONSTITUTION.  25 

its  reacliing  an  extreme  point  on  the  other  side.  Lecture  i. 
In  my  opinion,  the  just  and  equal  observance  <^i  R^rhr  )rinci  ks^ 
the  rights  of  the  States,  and  of  the  General  Gov-  of  Construction, 
ernment,  as  defined  by  the  present  Constitution, 
is  as  necessary  to  the  permanent  prosperity  of 
our  country,  and  to   its  existence  for    another 
century,  as  it  has  been  for  the  one  whose  close 
we  are  now  celebrating. 

Having  considered  the    objections    originally  Division  of 
made  to  this  great  work,  in  the  light  of  its  oper-  po^'ers  into  legis- 

"-^  ^  ,    .       .      lative,  executive, 

ation  for  a  century,  what  shall  we  say  of  it  in  and  judicial, 
reo-ard  to  those  great  features  which  were  more 
generally  acceptable  ?  The  doctrine  of  Montes- 
quieu, then  in  the  height  of  his  influence,  that 
the  powers  essential  to  all  governments  should  be 
distributed  among  three  separate  bodies  of  magis- 
tracy, —  namely,  legislative,  executive,  and  judi- 
cial,—  was,  as  Madison  affirms  in  number  XL VII 
of  the  Federalist,  recognized  by  the  convention 
as  the  foundation  of  its  labors.  The  apparent 
departure  from  that  principle  in  making  the 
Senate  a  participant  in  the  exercise  of  the  ap- 
pointing powder,  and  the  treaty-making  power, 
works  well,  because  the  initiative  remains  with 
the  Executive.  The  power  of  that  body  to  try 
impeachments  of  public  officers  for  high  crimes 
and  misdemeanors,  a  function  essentially  judi- 
cial, while  it  has  not  produced  any  substantial 
injury,  has,  perhaps,  operated  as  a  safety-valve 
in  cases  of  great  popular  excitement.  As  an 
efficient  remedy,  it  must  be  conceded  to  be  a 
failure. 

But  the  harmony  and  success  with  which  the 


and  judicial. 


26  LECTURES    ON    CONSTITUTIONAL    LAW. 

lectuue  I.         three  great  subdivisions  of  the  organized  govern- 
Division  of  ment  of  the  Constitution  have  co-operated  in  the 

powers  into  legis-  i 

lative,  executive,  growth,  prosperity,  and  happiness  of  this  great 
people,  constitute  the  strongest  argument  in  favor 
of  the  organic  law,  which  governs  them  all.  It 
is  the  first  successful  attempt,  in  the  history  of 
the  world,  to  lay  the  deep  and  broad  foundations 
of  a  government  for  millions  of  people  and  an 
unlimited  territory,  in  a  single  written  instru- 
ment, framed  and  adopted  in  one  great  national 
effort. 

This  instrument  comes  nearer  than  any  of 
political  origin  to  Rousseau's  idea  of  a  society 
founded  on  social  contract.  In  its  formation, 
States  and  individuals,  in  the  possession  of  equal 
rights,  —  the  rights  of  human  nature  common 
to  all,  —  met  together  and  deliberately  agreed  to 
give  up  certain  of  those  rights  to  government 
for  the  better  security  of  others  ;  and  that  there 
might  be  no  mistake  about  this  agreement  it  was 
reduced  to  writing,  with  all  the  solemnities  which 
give  sanction  to  the  pledges  of  mankind. 

Other  nations  speak  of  their  constitutions, 
which  are  the  growth  of  centuries  of  govern- 
ment, and  the  maxims  of  experience,  and  the 
traditions  of  ages.  Many  of  them  deserve  the 
veneration  which  they  receive ;  but  a  constitu- 
tion, in  the  American  sense  of  the  word,  as 
accepted  in  all  the  States  of  North  and  South 
America,  means  an  instrument  in  writing,  defin- 
ing the  powers  of  government,  and  distributing 
those  powers  among  different  bodies  of  magis- 
trates for  their  more  judicious  exercise.     The 


FORMATION    OF    THE    CONSTITUTION.  27 

Constitution  of  the  United  States  not  only  did  lecture  i. 
this  as   reo-ards  a  national   government,  but  it  ^'^'^'°"  *^/      . 

^  o  7  powers  into  legi»- 

establislied  a  federation  of  many  States  by  the  i-itive,  executive, 
same  instrument,  in  which  the  usual  fatal  de-  ^°  ^"  '°'* " 
fects  in  such  unions  have  been  corrected  with 
such  felicity,  that  during  the  hundred  years  of 
its  existence  the  iniion  of  the  States  has  grown 
stronger,  and  has  received  within  that  Union 
other  States  exceeding  in  number  those  of  the 
original  federation. 

It  is  not  only  the  first  important  written  con-  The  success  of  the 
stitution  found  in  history,  but  it  is  the  first  one  """^  ^"'■'°  °/ 

'^  '  government. 

which  contained  the  principles  necessary  to  the 
successful  confederation  of  numerous  powerful 
States.  I  do  not  forget,  nor  do  I  mean  to 
disparage,  our  sister,  the  federal  republic  of 
Switzerland :  but  her  contmuance  as  an  inde- 
pendent power  in  Europe  is  so  largely  due  to 
her  compact  territory,  her  inaccessible  moun- 
tains, her  knowledge  of  the  necessity  of  union 
to  safety,  and  the  policy  of  her  powerful  neigh- 
bors which  demands  of  each  other  the  recogni- 
tion of  her  rights,  that  she  hardly  forms  an 
exception.  Switzerland  stands  to-day  —  so  may 
she  ever  stand  —  as  the  oldest  witness  to  the 
capacity  of  a  republican  federation  of  States 
for  sound  government,  for  the  security  of  free- 
dom, and  resistance  to  disintegrating  tendencies. 
When  we  consider  the  results  of  confedera- 
tion in  the  Olympic  Council,  and  the  Achaian 
League  of  ancient  history,  and  in  modem  tunes 
in  the  States  of  Holland  and  the  old  German 
Empire,  we  must  admit  that  the  United  States 


28  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  I.  present  the  most  remarkable,  if  not  the  only  suc- 
'^^^  form  oT^  *^^  cessful,  happy,  and  prosperous,  federated  govern- 
government.        ment  of  the  world. 

The  growth  of  Let  US  cousidcr  for  a  moment  the  evidence  of 

the  United  States,  ^j^-^^    ^j^^^^  ^^le  Constitution  was  finally  ratified, 

and  Rhode  Island  also  accepted  it,  the  Govern- 
ment was  composed  of  thirteen  States.  It  now 
numbers  thirty-eight.  The  inhabited  area  of 
those  States  was  found  between'  the  Allegheny 
Mountains  and  the  Atlantic  Ocean,  a  region 
which,  when  we  now  look  over  a  map  of  the 
United  States,  seems  to  be  but  the  eastern  bor- 
der of  the  great  republic.  Its  area  now  includes 
all  the  territory  between  the  Atlantic  and  Pacific 
Oceans, —  a  distance  of  over  three  thousand 
miles  east  and  west,  —  and  between  the  St. 
Lawrence  and  the  Great  Lakes  on  the  north  and 
the  Gulf  and  States  of  Mexico  on  the  south. 
Besides  these  thirty-eight  States,  the  remainder 
of  this  immense  region  is  divided  into  eight 
Territories,  with  an  organized  government  in 
each,  several  of  which  are  ready  to  be  admitted 
into  the  Union  as  States,  under  a  provision  of 
the  Constitution  on  that  subject,  and  in  accord- 
ance with  the  settled  policy  of  the  nation. 

The  thirteen  States  which  originally  organized 
this  Government  had  a  population  believed  to 
be,  in  round  numbers,  three  millions,  many  of 
whom  were  slaves.  To-day  it  seems  probable 
that  sixty  millions  are  embraced  in  the  United 
States,  in  which  there  breathes  no  soul  who  owns 
any  man  master. 

I  have  already   suggested   the   impoverished 


FOEMATION    OF    THE    CONSTITUTION.  29 

condition  of  the  country  at  the  close  of  the  Rev-  lecture  i. 
olutionary  war.       To-day  I  do  not  hesitate  to  r",^T?«?'* 

'^  _  "^  the  L  niteu  States. 

make  the  assertion,  that  if  you  count  only  that 
which  is  real  wealth,  and  not  accumulated  capi- 
tal in  the  shape  of  evidences  of  debt,  —  which 
is  but  a  burden  upon  such  property,  —  I  mean, 
if  you  count  lands  and  houses  and  furniture,  and 
horses  and  cattle  and  jewels,  —  all  that  is  tangi- 
ble and  contribi^tes  to  the  comfort  and  pleasure 
of  life,  —  the  United  States  to-day  is  the  wealth- 
iest country  upon  the  face  of  the  globe,  and  is 
the  only  great  government  which  is  so  rapidly 
paying  off  its  national  debt  that  it  is  begging 
its  creditors  to  accept  their  money  not  yet  due, 
with  a  reasonable  rebate  for  interest. 

Under  the  Government  established  by  this 
Constitution  we  have,  in  the  century  which  we 
are  now  overlooking,  had  three  important  Avars, 
such  as  are  always  accompanied  by  hazardous 
shocks  to  all  governments.  In  the  first  of  these 
we  encountered  the  British  Empire,  the  most 
powerful  nation  then  on  the  globe,  —  a  nation 
which  had  successfully  resisted  Napoleon,  with 
all  the  power  of  Europe  at  his  back.  If  we  did 
not  attain  all  we  fought  for  in  that  contest,  we 
displayed  an  energy  and  courage  which  com- 
manded for  us  an  honorable  stand  among  the 
nations  of  the  earth. 

In  the  second,  —  the  war  with  Mexico,  —  while 
our  reputation  as  a  warlike  people  suffered  no 
diminution,  we  made  large  accessions  of  valuable 
territory,  out  of  which  States  have  been  since 
made  members  of  the  Union. 


30  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  I.  The  last  war,  — tliG  recent  civil  war,  — in  the 

The  growth  of      j^^^^Yiber  of  men  ena;aared  in  it,  in  the  capacity 

the  United  btates.  .  . 

of  the  weapons  and  instruments  of  destruction 
brought  into  operation,  and  in  the  importance 
of  the  result  to  humanity  at  large,  must  be 
esteemed  the  greatest  war  that  the  history  of 
the  world  presents.  It  was  brought  about  by  the 
attempt  of  eleven  of  the  States  to  destroy  the 
Union.  This  was  resisted  by  the  Government 
of  that  Union  under  the  powers  granted  to  it  by 
the  Constitution.  Its  results  were  the  emanci- 
pation of  three  millions  of  slaves,  the  suppression 
of  the  attempt  to  dissever  the  Union,  the  resump- 
tion of  an  accelerated  march  in  the  growth, 
prosperity,  and  happiness  of  this  country.  It 
also  taught  the  lesson  of  the  indestructibility  of 
the  Union,  of  the  wisdom  of  the  principles  on 
which  it  is  founded,  and  it  astonished  the  nations 
of  the  world  and  inspired  them  with  a  respect 
which  they  had  never  before  entertained  for  our 
country. 

I  venture  to  hope  that,  with  the  earnest  gaze 
of  the  wisest  and  ablest  minds  of  the  age  turned 
with  profound  interest  to  the  experiment  of  the 
federative  system,  under  our  American  Constitu- 
tion, it  may  suggest  something  to  relieve  the 
nations  of  Europe  from  burdens  so  heavy  that  if 
not  soon  removed  they  must  crush  the  social 
fabric.  Those  great  nations  cannot  go  on  for- 
ever adding  millions  upon  millions  to  their  pub- 
lic debts,  mainly  for  the  support  of  permanent 
standing  armies,  while  those  armies  make  such 
heavy  drafts  upon  the  able-bodied    men  whose 


FORMATION    OF    THE    CONSTITUTION.  31 

productive  industry  is  necessary  to  the  support  lfxturk  i. 
of  the  people  and  of  the  government.  "^uS'sle. 

I  need  not  dwell  on  this  unpleasant  subject 
further  than  to  say  that  these  standing  armies 
are  rendered  necessary  by  the  perpetual  dread  of 
war  with  neighboring  nations. 

In  the  principles  of  our  Constitution  by  which 
the  autonomy  and  domestic  government  of  each 
State  are  preserved,  while  the  supremacy  of  the 
General  Government  at  once  forbids  wars  between 
the  States,  and  enables  it  to  enforce  peace  among 
them,  we  may  discern  the  elements  of  political 
forces  sufficient  for  the  rescue  of  European  civili-  ♦ 

zation  from  this  great  disaster. 

Do  I  claim  for  the  Constitution,  whose  creation 
we  celebrate  to-day,  the  sole  merit  of  the  won- 
derful epitome  which  I  have  presented  to  you  of 
the  progress  of  this  country  to  greatness,  to  pros- 
perity, to  happiness,  and  to  honor?  Nay,  I  do 
not ;  though  language  used  by  men  of  powerful 
intellect  and  great  knowledge  of  history  might 
be  my  justification  if  I  did. 

Mr.  Bancroft,  the  venerable  historian,  who 
has  devoted  a  long  and  laborious  life  to  a  history 
of  his  country  that  is  a  monument  to  his  genius 
and  his  learning,  says  of  the  closing  hours  of  the 
convention  :  "  The  members  were  awe-struck  at 
the  result  of  their  counsels ;  the  Constitution 
was  a  nobler  work  than  any  one  of  them  believed 
possible  to  devise."  And  he  prefaces  the  volume 
of  his  invaluable  history  of  the  formation  of  the 
Constitution  with  a  sentiment  of  Mr.  Gladstone, 
the  greatest  living  statesman  of  England,  who 


32  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  I.         Said :   "  As  the  British  constitution  is  the  most 
Thegrowthof      g^^Jtle    orffanism    which    has    proceeded    from 

the  Uuiteu  States.  o  i^     ^ 

progressive  history,  so  the  American  Constitu- 
tion is  tlie  most  wonderful  work  ever  struck 
off  at  a  given  time  by  the  brain  and  purpose 
of  man." 

And  while  I  heartily  indorse  this,  and  feel  it 
impossible  to  find  language  in  which  to  express 
my  admiration  and  my  love  for  the  Constitution 
of  the  United  States,  and  my  profound  belief 
that  the  wisdom  of  man,  unaided  by  inspiration, 
has  produced  no  writing  so  valuable  to  humanity, 
i  I  should  fail  of  a  most  important  duty  if  I  did 

not  say  on  this  public  occasion,  that  no  amount 
of  wisdom  in  a  constitution  can  produce  wise 
government,  unless  there  is  a  suitable  response 
in  the  spirit  of  the  people. 

The  Anglo-Saxon  race,  from  whom  we  inherit 
so  much  that  is  valuable  in  our  character,  as 
well  as  our  institutions,  has  been  remarkable  in 
all  its  history  for  a  love  of  law  and  order.  While 
other  peoples,  equally  cultivated,  have  paid  their 
devotion  to  the  man  in  power,  as  representative 
of  the  law  which  he  enforces,  the  English  people, 
and  we  their  descendants,  have  venerated  the  law 
itself,  looking  past  its  administrators,  and  giving 
our  allegiance  and  our  obedience  to  the  princi- 
ples which  govern  organized  society.  It  has 
been  said  that  a  dozen  Englishmen  or  Ameri- 
cans, thrown  on  an  uninhabited  island,  would 
at  once  proceed  to  adopt  a  code  of  laws  for  their 
government,  and  elect  the  officers  who  were  to 
enforce  them.      And  certainly  this  proposition 


FORMATION    OF    THE    CONSTITUTION.  33 

is  borne  out  by  the  early  liistory  of    our  emi-  lecture  i. 
grants  to  California,  where  every  mining  camp  t^i^g'^united  states 
organized  into  a  political  body,  and  made  laws 
for  its  own  government,  which  were  so  good  that 
Congress    adopted   them    until    they  should   be 
repealed  or  modified  by  statute. 

I  but  repeat  the  language  of  the  Supreme  Conclusion. 
Court  of  the  United  States  when  I  say  that  in 
this  country  the  law  is  supreme.  No  man  is  so 
high  as  to  be  above  the  law.  No  officer  of  the 
Government  may  disregard  it  with  impunity. 
To  this  inborn  and  native  regard  for  law,  as  a 
governing  power,  we  are  indebted  largely  for  the 
wonderful  success  and  prosperity  of  our  people, 
for  the  security  of  our  rights;  and  when  the 
highest  law  to  which  we  pay  this  homage  is  the 
Constitution  of  the  United  States,  the  history  of 
the  world  has  presented  no  such  wonder  of  a 
prosperous,  happy  civil  government. 

Let  me  urge  upon  my  fellow-countrymen,  and 
especially  upon  the  rising  generation  of  them,  to 
examine  with  careful  scrutiny  all  new  theories 
of  government  and  of  social  life,  and  if  they  do 
not  rest  upon  a  foundation  of  veneration  and 
respect  for  law  as  the  bond  of  social  existence, 
let  them  be  distrusted  as  inimical  to  human 
happiness. 

And  now  let  me  close  this  address  with  a  quo- 
tation from  one  of  the  ablest  jurists  and  most 
profound  commentators  upon  our  laws,  —  Chan- 
cellor Kent.  He  said,  fifty  years  ago  :  "  The 
Government  of  the  United  States  was  created  by 
the  free  voice  and  joint  will  of  the   people  of 


34  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  I,  America  for  their  common  defence  and  general 
Conclusion.  welfare.  Its  powers  apply  to  those  great  inter- 
ests which  relate  to  this  country  in  its  national 
capacity,  and  which  depend  for  tlieir  stability 
and  protection  on  the  consolidation  of  the  Union. 
It  is  clothed  with  the  principal  attributes  of  sov- 
ereignty, and  it  is  justly  deemed  the  guardian 
of  our  best  rights,  the  source  of  our  highest  civil 
and  political  duties,  and  the  sure  means  of  our 
national  greatness." 


NOTES  UPON    LECTURE  I. 


The  Constitution  of  the  United  States,  like  lecture  i. 
all  systems  of  government  which  are  permanent,  ^ht^o^tcome^of''' 
had  its  origin  in  the  history  and  necessities  of  previous  history. 
the  people  through  whose  instrumentality  and 
for  whose   benefit  it  was    formed.     Driven   by 
those  necessities,  the  people  of  the  United  Colo- 
nies assumed  and  exercised  the  national  powers 
of  a  federative  government,  before  any  written 
charter  was  made.     The  very  Act  of  Separation 
assumes  this  fact.     It  is  not  the  Declaration  of 
thirteen  individual   States,  but  of  "the  RejDre- 
sentatives  of  the  United  States  of  America,  in 
General  Congress  assembled." 

In  Colonial  days  more  than  one  effort  had 
been  made  to  secure  a  local  union  of  Colonies  in 
different  parts  of  the  country.  These  doubtless 
contributed  more  or  less  to  the  desire  for  unity 
and  nationality  which  eventually  found  expres- 
sion in  the  Constitution.^ 

In  1765  an  American  Congress  assembled  at 
New  York,  but  it  was  a  deliberative  body  only, 
with  no  governmental  functions,  and  no  powers, 
executive  or  legislative.     On   the    5th  of   Sep- 

1  Bancroft's  History  of  the  United  States,  Last  Revision,  vol.  1, 
pp.  291,  292 ;  2  lb.  pp.  74,  75  ;  6  lb.  pp.  7,  8. 

35 


36  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  I.  tember,  1774,  tliG  first  Continental  Congress  met 
in  Philadelphia.  When  it  adjourned  it  provided 
for  a  second  Congress  to  meet  in  Philadelphia 
in  the  following  May.  Before  that  time  arrived 
the  battles  of  Lexington  and  Concord  had  taken 
place. 
The  Congress  of  Tliis  Outbreak  of  a  state  of  war  found  in  each 
1775  exercises       Colouv  or  ProviucG   an    Organized    arovernment 

National  powers.  '^  ^  .... 

witli  separate  functions,  exercising  a  limited 
sovereignty  under  the  king  of  Great  Britain. 
Many  of  the  broader  powers  and  functions  of 
National  Sovereignty,  which  the  Constitution 
now  places  in  the  government  of  the  United 
States,  then  resided  in  the  British  king  and  Par- 
liament. When  British  sovereignty  fell,  such 
powers  were  assumed  and  exercised,  without 
question,  by  the  Congress  of  the  United  Colonies, 
before  the  United  States  existed  as  an  indepen- 
dent nation ;  months  before  the  Articles  of  Con- 
federation were  agreed  to ;  years  before  they 
became  operative  by  receiving  the  assent  of  all 
the  States.  They  were  never  enjoyed  or  exer- 
cised by  the  States  separately ;  and  consequently, 
as  an  historic  fact,  independently  of  theory,  they 
could  not  have  been  retained  when  the  States 
conferred  upon  the  general  Government  other 
enumerated  powers  in  the  Articles  of  Confedera- 
tion. 
The  United  States  Uucousciously  to  themsclvcs  the  people  of  the 
becomes  a  nation.  United  States  wcrc  absorbcd  into  a  new  nation- 
ality by  the  very  fact  of  their  combined  resis- 
tance to  Great  Britain.  They  carried  on  war; 
they   officered   and    maintained    armies ;    they 


NOTES    UPON    LECTURE    I.  37 


commissioned  vessels    of    war ;    they   borrowed  lecture  i. 

The  United 
becomes  a  nation. 


money  and  issued   evidences   of   debt  theref or ; '^^^  ^'^^'"'^  ^'^'^^ 


they  created  prize  courts ;  they  acquired  terri- 
tory and  determined  what  the  nature  of  its  civil- 
ization should  be ;  they  made  treaties  with  for- 
eign powers  ;  and  in  many  ways,  both  before 
and  after  the  adoption  of  the  Articles  of  Con- 
federation, they  exercised  the  highest  powers  of 
sovereignty. 

This  Congress  was  both  the  Executive  and  the 
Legislature  of  the  Nation.  It  was  the  body 
which  framed  the  Articles  of  Confederation,  and 
many  of  its  members  were  also  in  the  Conven- 
tion which  framed  the  Constitution  of  the  United 
States.  Unless  that  Constitution  is  to  be  con- 
strued theoretically,  and  without  regard  to  the 
incidents  of  the  national  history  of  which  it  was 
the  outcome,  a  knowledge  of  what  that  Congress 
did,  derived  from  historical  investigation,  must 
help  us  in  comprehending  what  sort  of  a  govern- 
ment the  framers  of  the  Constitution  intended 
to  establish.  To  cover  this  whole  ground  would 
be  to  write  the  legislative  history  of  those  event- 
ful fourteen  years.  I  select  from  all  its  legis- 
lation three  subjects:  1,  The  Appellate  Prize 
Courts  ;  2,  The  Treaties  negotiated  with  Foreign 
Powers ;  3,  The  acquisition  of  the  territory  to 
the  northwest  of  the  Ohio,  and  the  exclusion  of 
slavery  from  it. 

1.  Appellate  Prize  Courts  of  the  Revolution. 
Soon  after   hostilities  began,   representatives  Appellate  Prize 
of  the  United   Colonies  assembled  together  in  i{evoiut*ion.'^ 


38 


LECTURES    ON"    CONSTITUTIONAL    LAW. 


Lecture  I. 
Appellate  Prize 
Courts  of  the 
Revolution. 


Colonial  Admi- 
ralty Courts. 


Pliiladeljohia  with  the  purpose  of  consulting  and 
legislating  for  the  common  good.  Union  existed, 
thouo-h  without  written  charter,  and  with  no 
means  of  preventing  dissolution.  The  first  ob- 
ject of  the  Continental  Congress,  after  the  bat- 
tles of  Lexington  and  Concord,  was  to  put  a 
force  in  the  field  which  would  enable  the  com- 
mander-in-chief to  hold  the  enemy  in  check. 
But  it  was  soon  discovered,  in  practice,  that 
there  was  another  element  in  the  contest  for 
which  no  provision,  adequate  or  otherwise,  had 
been  made,  and  which  Congress  had,  perhaps, 
not  taken  into  consideration. 

The  people  living  in  the  eastern  part  of  Mas- 
sachusetts, which  was  then  the  theatre  of  war, 
were  to  a  large  extent  sailors  or  fishermen ;  or 
in  some  other  way  they  got  their  living  or  their 
recreation  out  of  maritime  pursuits.  The  com- 
merce of  Boston,  Providence,  New  York,  and 
other  ports  was  carried  on  under  the  British  flag, 
with  British  money,  to  transport  British  goods. 
This  was  an  invitation  to  a  maritime  people  to 
engage  in  a  maritime  war  against  the  enemy's 
commerce.  The  invitation  was  immediately 
accepted. 

Vessels,  captured  from  time  to  time,  were 
brought  into  such  Massachusetts  ports  as  were 
not  in  the  enemy's  possession ;  but  it  was  found 
that  no  court  existed  with  competent  jurisdiction 
to  adjudge  them  to  be  lawful  prize.  The  admi- 
ralty colonial  courts,  such  as  they  were,  existed 
under  authority  derived  from  a  royal  commis- 
sion.     This   was,    of   course,  not   available    to 


NOTES    UPON    LECTURE    I.  39 

the  seamen  of  Massacliusetts  in  the  summer  of  lecture  i. 

1775.^  Colonial 

Aunuralty 

To    meet    this    emergency,   the    Council   and  courts. 

TT  £     -r>  xi."  i!j.iTi-  J?  Massachusetts 

House  01  Kepresentatives  oi  the  rrovmce  oi  Admiralty 
Massachusetts  Bay,  on  the  1st  of  November,  Courts. 
1775,  enacted  a  statute  which  is  said  to  be  "re- 
markable as  having  been  the  first  which  was 
passed  by  any  of  the  Colonies  for  fitting  out 
vessels  of  marque  and  reprisal,  and  for  estab- 
lishing a  court  to  try  and  condemn  the  captured 
vessels  of  the  enemy."  ^  The  act  divided  the 
State  into  three  districts,  in  each  of  which  it 
established  a  Maritime  Court,  with  jurisdiction 
over  prizes,  but  differing  from  the  Admiralty 
Court  known  in  International  Law,  by  permit- 
ting the  facts  to  be  found  by  a  jury.^  Boston, 
being  occupied  by  the  enemy,  was  not  included 
in  this  division ;  but  when  the  enemy  retired, 
the  districts  were  reorganized,  and  an  appeal 
was  given  to  the  Continental  Congress  in  cases 


1  "In  each  one  of  the  royal  colonies  in  America,  as  in  each  of 
the  other  colonies  of  Great  Britain,  the  commission  issued  to  the 
royal  governor  usually  invested  him  with  the  powers  of  a  vice- 
admiral.  .  .  .  Cases  of  capture  arising  in  the  Colonies  had  naturally 
gone  to  these  courts.  But  the  vice- admiralty  courts  were  rapidly 
destroyed  by  the  Revolution.  AVhere  the  governor  had  acted  as 
judge,  he  was  now  in  flight.  .  .  .  Nor  could  judges  sit  by  virtue 
of  commissions  from  King  George  to  give  judgment  respecting 
prizes  captured  from  him.  The  vice- admiralty  courts  continued  in 
existence  in  those  places  only  which  were  occupied  by  royal  forces." 
—  The  Predecessor  of  the  Supreme  Court,  by  J.  E.  Jameson,  Ph.D., 
being  Essay  1  in  Essays  in  the  Constitutional  History  of  the  United 
States  in  the  Formative  Period,  p.  5,  edited  by  Professor  Jameson. 

2  3  Sparks'  Washington,  154,  n, 

8  Act  of  November  1, 1775.  Acts  and  Resolutions  of  the  Prov- 
ince of  Massachusetts  Bay,  vol.  5,  p.  436. 


40  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  I.         of  vessels  fitted  Gilt  at  tliG  cliarge  of  the  United 

Massachusetts         /^    i^„:„„ 
Admiralty 

Courts.  This   act  apparently  came  at  once   into  the 

hands  of  General  Washington.  On  the  11th 
day  of  the  same  November  in  which  it  was 
enacted,  he  sent  a  copy  of  it  to  the  President 
of  Congress,  and  suggested  that  such  a  court 
should  "•  be  established  by  authority  of  Con- 
gress, to  take  cognizance  of  prizes  made  by  the 
Actiouof  Continental    vessels,"    adding,    "whatever    the 

washmgton.        jj^odc  is  wliicli  they  are  pleased  to  adopt,  there 
is  an   absolute  necessity  of  its   being    speedily 
determined  on." 
Congress  becomes      This  letter  was,  ou  its  receipt,  referred  to  a 
an  Appellate        committee,  who  on  the  23d  of  the  same  Novem- 

Court  in  Prize 

Cases.  ber,  brought    in  their  report.     After  a   debate 

running  over  parts  of  the  following  two  days,  a 
series  of  resolutions,  appended  to  the  report, 
was  adopted  and  j)assed.  These  resolutions 
authorized  the  capture  of  prizes  on  the  high  seas  ; 
legalized  those  already  made  ;  settled  a  rate  of 
distribution  of  prize  money  (a  settlement  which 
was  afterwards  modified)  ;  provided  that  suits 
for  condemnation  should  be  commenced  in  the 
first  instance  in  Colonial  Courts,  and,  further, 
contained  the  following  section  respecting  ap- 
peals : 

"  6.  That  in  all  cases  an  appeal  shall  l)e 
allowed  to  the  Congress,  or  such  person  or  per- 
sons as  they  shall  appoint  for  the  trial  of  appeals, 
provided  the  appeal  be  demanded  within  five 
days  after  definitive  sentence,  and  such  appeal 
be  lodged  with  the  Secretary  of  Congress  within 


NOTES    UPON    LECTURE    I.  41 

forty  (lays  afterwards,  and  provided  the  party  lecture  i. 
appealing  shall  give  security  to  prosecute  the  ^°';^«p'^'^;^;f  ™'' 
said  appeal  to  effect ;  and  in  case  of  the  death  of  Court  in  Prize 
the  Secretary  during  the  recess  of  Congress,  then 
the  said  appeal  to  be  lodged  in  Congress  within 
twenty  days  after  the  meeting  thereof." 

When  Washington  learned  of  this  action,  he 
wrote  to  the  President  of  Congress :  "  The  re- 
solves relating  to  captures  made  by  Continental 
armed  vessels  only  want  a  court  established  for 
trial  to  make  them  complete.  This,  I  hope,  will 
soon  be  done,  as  I  have  taken  the  liberty  to  urge 
it  often  to  the  Congress." 

This  suggestion  of  Congress  w^as  responded  to  The  colonies 
sooner  or  later  by  all  the  Colonies  and  States  J«"^^>-  ^PPeiiate 

^  Prize  Jurisdiction 

except  New  York,  whose  maritime  counties  were  on  congress. 
in  the  possession  of  the  enemy  from  the  autumn 
of  1776  until  the  close  of  the  war.  A  detailed 
account  of  this  legislation  will  be  found  in  the 
Ajopendix  to  Volume  131  of  the  United  States 
Reports.  It  is  sufhcient  here  to  say  that  all 
the  States  except  New  York  created  prize 
courts,  and  gave  an  appellate  jurisdiction  to 
Congress  from  their  judgments ;  but  in  nearly 
or  quite  every  one,  provision  was  made  for  a 
trial  of  the  facts  by  a  jury,  from  which  great 
trouble  arose,  as  we  shall  see  hereafter. 

The  State  Courts,  organized  under  these  sev-  Decisions  of  the 
eral  statutes,  evidently  had  plenty  to  do.    Of  their  ^^^^^^^  ^'"'" 
decisions  one  hundred  and  nine  were  reviewed 
in  the  appellate  tribunals  created  by  Congress. 
The  origin  of  two  of  these  cases  is  not  known. 
Three  came  from  New  Hampshire ;  twenty-six 


42 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  I. 
Decisions  of  the 
Appellate  Prize 
Courts. 


Articles  of  Con- 
federation 
adopted. 


Case  of  the 
Active. 


from  Massachusetts ;  ten  from  Rhode  Island ; 
sixteen  from  Connecticut;  fourteen  from  New 
Jersey ;  eleven  from  Pennsylvania ;  five  from 
Delaware ;  four  from  Maryland ;  two  from 
Virginia ;  twelve  from  North  Carolina ;  two 
from  South  Carolina ;  and  two  from  Georgia. 
The  first  appeal  was  decided  September  9, 
1776 ;  the  last  judgment  was  rendered  May  3, 
1787. 

Some  applications  were  made  to  Congress  to 
take  original  jurisdiction  in  such  cases  ;  but  with 
one  exception  it  refused.  Its  appellate  jurisdic- 
tion was  exercised  at  first  through  special  com- 
mittees, and,  later,  by  a  general  committee,  who 
soon  came  to  be  styled  Commissioners.  This 
committee  was  constantly  changing  its  members, 
so  that  it  was  rarely  that  two  cases  were  heard 
by  the  same  committee. 

The  Articles  of  Confederation  were  moving 
along  side  by  side  with  these  proceedings.  They 
were  adopted  in  November,  1777,  and  by  May  5, 
1779,  had  received  tlie  assent  of  all  the  States 
except  Maryland,  which  wisely  held  back  to 
secure  that  settlement  of  the  public  lands  which 
was  eventually  made.  That  State  gave  its 
assent  in  March,  1781. 

Before  such  consent  was  given  a  question 
arose  which  showed  how  important  it  was  that 
a  court  of  appeals  in  prize  cases  should  be  estab- 
lished on  a  proper  basis. 

An  armed  vessel,  commissioned  by  the  State 
of  Pennsylvania,  captured  on  the  high  seas  a 
vessel  called  the  Active,  sailing  from  Jamaica 


NOTES    UPON    LECTURE    I.  43 

to  New  York  ;  took  it  into  Philadelphia ;  and  lecture  i. 
caused  it  to  be  libelled  in  the  State  Court  of  ^^^;^^^|  *^' 
Admiralty  there.  A  trial  was  had  by  jury,  whose 
verdict  was  as  follows :  "  One  fourth  of  the  net 
proceeds  of  the  sloop  Active  and  her  cargo  to 
the  first  claimants ;  three  fourths  of  the  net  pro- 
ceeds of  the  said  sloop  and  her  cargo  to  the 
libellant  and  the  second  claimant  as  per  agree- 
ment between  them."  Judgment  was  entered 
on  the  verdict,  from  which  an  appeal  was  taken 
to  the  Commissioners. 

The  Commissioners,  after  hearing,  reversed 
the  judgment,  and  directed  the  court  below  to 
issue  process  commanding  the  marshal  to  sell 
the  sloop  and  her  cargo,  and  to  pay  the  residue 
remaining  after  payment  of  costs,  charges,  and 
expenses  to  the  appellants. 

The  judge  of  the  State  Court  of  Admiralty 
declined  to  execute  this  mandate,  on  the  ground 
that,  under  the  Pennsylvania  Statute  creating 
the  court,  the  jury  were  to  pass  upon  the  facts, 
and  that  the  reversal  above,  being  a  reversal  of 
their  verdict,  was  beyond  the  competence  of 
the  court.  Thereupon  General  Benedict  Ar- 
nold, who  was  in  command  in  Philadelphia, 
wrote  to  the  Commissioners  of  Appeal  that  the 
judge  below  was  "  about  getting  possession  of 
the  money  with  the  avowed  and  declared  pur- 
pose of  standing  out  obstinately  against  any 
orders  that  may  be  given.  He  has  issued  his 
orders  to  the  marshal  to  deliver  the  amount  of 
sales  to  him,  which  is  to  be  done  by  appointment 
at   nine   o'clock  to-morrow  morning,  and  posi- 


44 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  I. 
Case  of  the 
Active. 


Resolutions  of 
Congress. 


tively  declares  that  no  order  of  the  Court  of 
Appeals  shall  take  it  out  of  his  hands  or  be 
obeyed."  He  added  :  "  Such  a  daring  attempt  as 
this  to  evade  the  justice  of  the  Superior  Court, 
at  a  time  too  when  the  matter  is  under  con- 
sideration, will,  I  doubt  not,  apologize  for  my 
troubling  you  with  a  request  to  meet  this  even- 
ing at  such  time  and  place  as  you  may  think 
proper  in  order  to  determine  upon  what  process 
shall  issue  at  so  early  an  hour  to-morrow  morn- 
ing as  will  tend  to  the  carrying  into  execution 
the  decree  above." 

The  Commissioners  met,  as  suggested,  and 
issued  the  proposed  injunction  which  was  served 
on  the  marshal  early  on  the  morning  of  January 
4,  while  the  money  was  still  in  his  possession ; 
but  he  deposited  it  in  the  court  below  notwith- 
standing the  injunction,  and  so  made  return. 
The  Commissioners,  "  being  unwilling  to  enter 
upon  any  proceedings  for  contempt,  lest  conse- 
quences might  ensue  at  this  juncture  dangerous 
to  the  public  peace  of  the  United  States,"  laid 
the  matter  before  Congress,  which  passed  the 
following  resolutions :  — 

"  Resolved,  That  Congress,  or  such  person  or 
persons  as  they  appoint  to  hear  and  determine 
appeals  from  the  Courts  of  Admiralty,  have 
necessarily  the  power  to  examine  as  well  into 
decisions  on  facts  as  decisions  on  the  law,  and 
to  decree  finally  thereon,  and  that  no  finding  of 
a  jury  in  any  court  of  admiralty,  or  court  for 
determining  the  legality  of  captures  on  the  high 
seas,  can  or  ought  to  destroy  the  right  of  appeal 


NOTES    UPON    LECTURE    I.  45 

and  the  reexamination  of  the  facts  reserved  to  lecture  i. 

r^       „  Resolutions  of 

Congress :  ^^^^^^^^^ 

"  That  no  act  of  any  one  State  can  or  ought 
to  destroy  the  right  of  appeal  to  Congress  in  the 
sense  above  declared : 

"  That  Congress  is  by  these  United  States 
invested  with  the  supreme  sovereign  power  of 
war  and  peace : 

"  That  the  power  of  executing  the  law  of 
nations  is  essential  to  the  sovereign  supreme 
power  of  war  and  peace  : 

"  That  the  legality  of  all  captures  on  the  high 
seas  must  be  determined  by  the  law  of  nations : 

"  That  the  authority  ultimately  and  finally  to 
decide  in  all  matters  and  questions  touching  the 
law  of  nations  does  reside  and  is  vested  in  the 
sovereign  supreme  power  of  war  and  peace : 

""  That  a  control  by  appeal  is  necessary  in  order 
to  compel  a  just  and  uniform  execution  of  the 
law  of  nations : 

"  That  the  said  control  must  extend  as  well 
over  the  decisions  of  juries  as  judges  in  courts 
for  determining  the  legality  of  captures  on  the 
sea ;  otherwise  the  juries  would  be  possessed  of 
the  ultimate  supreme  power  of  executing  the 
law  of  nations  in  all  cases  of  captures,  and 
might  at  any  time  exercise  the  same  in  such 
manner  as  to  prevent  a  possibility  of  being  con- 
trolled ;  a  construction  which  involves  many 
inconveniences  and  absurdities,  destroj^s  an  es- 
sential part  of  the  power  of  war  and  peace 
entrusted  to  Congress,  and  would  disable  the 
Congress   of    the   United    States    from    giving 


46  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  I.         satisfaction  to  foreign  nations  complaining  of 
Resolutions  of      ^  yiyij^tion  of  neutralities,  of  treaties,  or  other 

Congress.  '  ' 

breaches  of  the  law  of  nations,  and  would  enable 
a  jury  in  any  one  State  to  involve  the  United 
States  in  liostilities ;  a  construction  which  for 
these  and  many  other  reasons  is  inadmissible : 

"  That  this  power  of  controlling  by  appeal  the 
several  admiralty  jurisdictions  of  the  States  has 
hitherto  been  exercised  by  Congress  by  the 
medium  of  a  committee  of  their  own  members  : 

'^^  Resolved,  That  the  committee  before  whom 
was  determined  the  appeal  from  the  Court  of 
Admiralty  for  the  State  of  Pennsylvania,  in  the 
case  of  the  sloop  Active,  was  duly  constituted 
and  authorized  to  determine  the  same." 

This  disposed  of  the  case,  so  far  as  Congress 
was  concerned.  It  had  a  subsequent  history, 
however,  which  is  related  in  the  foot-note.  ^ 

1  After  the  payment  of  the  money  into  court,  the  marshal,  by 
direction  of  tlie  court,  paid  it  to  the  Treasurer  of  the  State,  he 
giving  a  bond  of  indemnity  to  the  judge.  The  State  neglecting  or 
declining  to  indemnify  the  Treasurer,  that  officer  kept  possession 
of  it  until  his  death.  It  was  invested  in  loan  office  certificates 
which,  after  his  death,  passed  to  his  personal  representatives. 
The  owners  under  the  decree  of  the  Congressional  Court  brought 
suit  in  admiralty,  after  the  Constitution  came  into  force,  against 
these  representatives.  The  District  Court  adjudged  that  the  libel- 
lants  were  entitled  to  the  certificates,  with  the  interest  upon  them 
which  had  been  collected.  The  State  of  Pennsylvania  then  set  up 
title  to  the  certificates.  In  a  statute,  tlie  preamble  to  which  set 
up  this  title  and  set  forth  the  Eleventh  Amendment  to  the  Consti- 
tution, and  that  the  suit  was  in  reality  one  against  the  State,  it 
was  enacted  that  the  executors  should  pay  the  money  into  the 
State  Treasury,  and  that  the  Governor  should  take  such  steps  as 
he  might  deem  necessary  to  protect  the  rights  of  the  State.  The 
District  Judge  under  these  circumstances  declined  to  issue  process 
to  enforce  the  decree  in  favor  of  the  claimants.  They  applied  to 
the  Supreme  Court  of  the  United  States  for  a  vreit  of  mandamus. 


NOTES    UPON    LECTURE    I.  47 

Notwithstanding  its  action  in  this  case,  it  lecture  i. 
was  not  until  January  15th,  1780,  that  Con- ^^^;;\;^J^;^pp'^^' 
gress  resolved  "  that  a  court  be  established  for 
the  trial  of  all  appeals  from  the  Courts  of 
Admiralty  in  these  United  States,  in  cases  of 
capture,  to  consist  of  three  judges  appointed 
and  commissioned  by  Congress,  either  two  of 
whom,  in  the  absence  of  the  other,  to  hold  the 
said  court  for  the  despatch  of  business ;  that 
the  said  court  appoint  their  own  register ;  that 
the  trials  therein  be  according  to  the  usage  of 
nations,  and  not  by  jury ; "  and  "  that  the  said 
judges  hold  their  first  session  as  soon  as  may 
be  at  Philadelphia,  and  afterwards  at  such  times 
and  places  as  they  shall  judge  most  conducive 
to  the  public  good,  so  that  they  do  not  at  any 
time  sit  further  eastward  than  Hartford  in 
Connecticut,  or  southward  than  Williamsburg 
in  Virginia." 

On  the  24th  day  of  the  following  May  Con- 
gress gave  to  this  court  the  name  of  the  Court 
of  Appeals  in  Cases  of  Capture ;  and  after  that 
time,  no  appeal  that  had  been  properly  taken 
in  a  State  Court,  reached  the  Appellate  Court 
through  the  action  of  Congress.  That  body 
acted  in  a  few  cases,  but  only  to  give  the  court 

An  alternative  writ  was  issued,  to  which  the  judge  made  return, 
setting  out  the  material  facts,  and  saying  that,  deeming  it  best  not 
to  embroil  the  government  of  the  United  States  with  the  State  of 
Pennsylvania,  until  the  Supreme  Court  should  have  had  an  oppor- 
tunity to  pass  upon  the  question,  he  had  acted  as  he  did  in  order 
to  enable  it  to  do  so.  On  the  authority  of  Penhalloin  v.  JDoane,  3 
Dall.  54,  which  will  be  referred  to  more  particularly  in  the  note 
to  Lecture  II,  post,  the  court  ordered  the  District  Court  to  enforce 
its  judgment.    This  was  eventually  done,  after  some  difficulty. 


48  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  l         a  jurisdiction  which  it  could  not  take  under  the 

'rii:Lr""  general  law. 

In  July,  1785,  the  war  being  over,  Congress 
refused  to  continue  to  grant  salaries  to  these 
judges.  The  next  year  it  voted  a  jyer  diem  pay 
while  on  duty,  together  with  travelling  expenses. 
Thus  the  predecessor  of  the  Supreme  Court  of 
the  United  States,  called  into  existence  by  a 
great  public  necessity,  sank  away  as  the  neces- 
sity diminished,  and  finally  ceased  to  exist ;  and 
when,  in  a  few  years,  the  new  Constitution  was 
made,  its  framers,  learning  wisdom  from  the 
past,  gave  to  the  new  Federal  Judiciary  not 
only  an  appellate,  but  an  original  and  exclusive 
jurisdiction  in  Admiralty. 

2.    Treaties  negotiated  hy  the  Continental 
Congress. 

Congress  prepares  Five  days  after  the  passage  of  the  resolutions 
fortrelties^or  i^vitiug  the  scvcral  Colonies  to  create  Courts  of 
amity  and  com-  Admiralty,  and  creating  a  Tribunal  for  Appeals 
in  Prize  Cases,  Congress,  on  the  29th  of  Novem- 
ber, 1775,  took  another  step,  in  a  different 
direction,  which  resulted  in  a  still  more  marked 
assertion  of  a  federal  control  over  matters 
which  up  to  that  time  had  been  entirely  within 
local  disposition.  It  appointed  a  "  Committee 
of  Secret  Correspondence,"  to  correspond  with 
friends  of  the  Colonies  in  other  parts  of  the 
world,  and  to  ascertain,  if  possible,  "  whether, 
if  the  colonies  should  be  forced  to  form  them- 
selves into  an  independent  State,  France  .  .  . 
would  enter  into  any  treaty  of  alliance  with 


merce. 


NOTES    UPON    LECTURE    I.  49 

them  for  commerce  or  defence,  or  both."     This  lecture  i. 
resulted   in  the  adoption  by  Conerress,  in  Sep- ^°"^'''*'^'*'',^''"^p*'"®^ 

^  ^  o  ^  -t     a  general  form 

tember  following,  of  a  plan  for  a  treaty  to  be  for  treaties  of 
proposed  to  the  King  of  France.^  This  plan  ^^J.^^  ^"^  ^°™' 
contemplated  that  the  Federal  Government, 
which  for  yet  two  years  was  to  exist  without 
the  adoption  of  any  written  Articles  of  Con- 
federation by  the  States,  should  assume  and 
exercise  the  following  important  powers  :  — 

Article  1  provided  that  Frenchmen  should  General  provis- 
"pay  no  other  duties  or  imposts  in  the  ports"  |y"4at'form^ 
of  the  United  States  "  than  the  natives  thereof," 
and  that  they  might  enjoy  all  "  the  rights,  lib- 
erties, privileges,  immunities,  and  exemptions  in 
trade,  navigation,  and  commerce,  in  passing 
from  one  part  thereof  to  another,  and  in  going 
to  and  from  the  same,  from  and  to  any  part  of 
the  world,"  which  the  natives  enjoyed.  This 
proposed  surrender  to  the  Federal  Government 
by  the  States  of  their  right  of  control  in  this 
respect  was  practically  carried  into  effect  in  the 
Treaty  of  Commerce  of  1778  with  France  (Art. 
Ill);'  in  the  Treaty  of  1782  with  Netherlands 
(Art.  II)  ;^  in  the  Treaty  of  1783  with  Sweden 
(Art.  Ill);'  and  in  the  Treaty  of  1785  with 
Prussia  (Art.  11).^ 

By  Article  5  of  the  plan  the  United  States 
were  to  engage  to  protect  and  defend  all  vessels 
and  effects  belonging  to  French  subjects,  and 
to  endeavor  to  recover  and  restore  them,  if 
taken   within    the    jurisdiction    of    the    United 

^  2  Secret  Journals  of  Congress  :  Foreign  Affairs,  7. 

2  8  Stat.  14.        3  8  Stat.  32.        *  8  Stat.  62.        ^  g  Stat.  84. 


50 


LECTURES    ON    CONSTITUTIONAL    LAW. 


l/Et'TUUK  I. 

General  provis- 
ions contained 
iu  that  form. 


Droit  d  aubaine. 


States  or  any  of  them.  This  provision  is 
found  in  Article  VI  of  the  Treaty  of  Com- 
merce of  1778  with  France;^  in  Article  V  of 
the  Treaty  of  1782  with  Netherlands  ;^  and  par- 
tially, in  Article  VII  of  the  Treaty  of  1785  with 
Prussia.^ 

The  droit  d'auhaine,  a  right  claimed  by  most 
sovereigns  of  that  time  to  confiscate  to  their 
own  use  the  succession  of  an  unnaturalized  for- 
eigner dying  within  their  dominions,  and  which 
Montesquieu  styled  "an  absurd  right,"*  Con- 
gress, in  its  plan  for  a  treaty,  asked  the  king  of 
France  to  abandon.  Article  II  of  the  Treaty 
of  Commerce  of  1778,^  as  negotiated,  complied 
with  this  request,  but  accompanied  it  with  a 
declaration  that  Frenchmen  should  "  enjoy  on 
their  part,  in  all  the  dominions  of  the  said 
States,  an  entire  and  perfect  reciprocity  relative 
to  the  stipulations  contained  in  the  present  ar- 
ticle." The  Treaty  of  1782  with  the  Nether- 
lands (Art.  VP)  gave,  in  the  place  of  this 
abandonment,  the  right  to  the  Dutch  foreigner 
residing  in  the  United  States,  to  dispose  of  his 
property  there  by  testament,  donation,  or  other- 
wise ;  the  right  to  receive  the  succession  ah 
intestato,  in  case  there  was  no  will;  and  the 
right  for  a  guardian  or  tutor  to  a  minor,  to  act 
in  his  behalf  in  receiving,  keeping,  and  alienating 
his  property.     This  precedent  was  followed  in 


»  8  Stat.  16.  2  8  Stat.  34.  3  8  Stat.  86. 

*  "Les  droits  insensfis  d'aubaine  et  de  naufrage."     Esprit  des 
Lois,  xxi,  17. 

6  8  Stat.  18.  6  8  Stat.  36. 


NOTES    UPON    LECTURE    I.  51 

the  Treaty  of    1783   with   Sweden  (Art.  VI) ;  ^  lecture  i. 
and  in  the  Treaty  of  1785  with  Prussia  (Art  X).^  Droit d'aubaine. 

In  many  other  respects  these  several  treaties,  other  provisions 
made  before  the  adoption  of  the  Constitution, '"  ^^^^^  treaties. 
and  largely  upon  the  suggestions  in  the  plan  of 
Congress  which  was  promulgated  before  the 
Articles  of  Confederation  were  adopted,  secured 
the  assent  of  the  contracting  parties  to  important 
principles,  some  of  which  were  not  then  uni- 
versally recognized  as  constituting  part  of  the 
public  law  which  should  govern  the  intercourse 
of  nations  with  each  other.^ 

The  evils  of  war  were  lessened  by  agreements 
that,  in  case  it  should  break  out,  time  should  be 
given  to  the  citizens  of  each,  in  the  territories  of 
the  other,  to  close  their  business  and  remove 
their  properties ;  *  or  that,  should  differences 
arise,  resort  should  not  be  had  to  force  until  a 
friendly  application  should  be  made  for  an 
arrangement.^ 

A  restraint  was  imposed  upon  private  war  by 
provisions  forbidding  the  citizens  of  either  Power 
to  accept  commissions  or  letters  of  marque 
from  enemies  of  the  other  Power  when  at 
war ;  ^  and  the  acceptance  of  such  commissions 

1  8  Stat.  64.  2  8  Stat.  88. 

3  See  Treaties  and  Conventions  between  tiie  United  States  and 
other  Powers,  ed.  1889,  p.  1221 :  introductory  note. 

*  France,  1778,  Art.  20,  8  Stat.  24 ;  Netherlands,  1782,  Art.  18, 
8  Stat.  42  ;  Sweden,  1783,  Art.  22,  8  Stat.  72  ;  Prussia,  1785,  Art. 
23,  8  Stat.  94. 

5  Morocco,  1787,  Art.  24,  8  Stat.  104. 

6  France,  1778,  Art.  21,  8  Stat.  24  ;  Netherlands,  1782,  Art.  19, 
8  Stat.  44  ;  Sweden,  1783,  Art.  23,  8  Stat.  74  ;  Prussia,  1785,  Art. 
20,  8  Stat.  94. 


52 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  I,         or  letters  was  declared  to  be  an  act  of  piracy, 
hitSrtTeitr  which  placed  the  offender  beyond  the  claim  of 
national  protection. 

The  right  of  neutrals  to  carry  on  and  main- 
tain their  commerce  on  the  high  seas  in  time 
of  war  was  recognized. '^  Articles  contraband 
of  war  were  defined  and  limited ;  ^  and  in  the 
Treaty  with  Prussia  it  was  even  agreed  that  no 
articles  should  be  so  deemed  contraband  as  to 
bring  about  confiscation  and  loss  of  property 
to  individuals.^  And  it  was  further  agreed 
that  free  ships  should  make  free  goods ;  ^  that 
neutral  goods  found  in  an  enemy's  ship  should 
not  be  confiscated  if  they  had  been  put  aboard 
before  the  declaration  of  war,  or  within  such 
short  period  thereafter  that  ignorance  of  a  state 
of  war  might  fairly  be  implied.^ 

Precise  rules  were  laid  down  to  be  observed 
in  visiting  neutral  vessels  on  the  high  seas,®  and 
humane  regulations  were  made  respecting  ves- 
sels on  which  articles  contraband  of  war  should 
be  discovered.'^ 


1  France,  1778,  Art.  23,  8  Stat.  24 ;  Sweden,  178.3,  Art.  7,  8  Stat. 
64  ;  Prussia,  1785,  Art.  12,  8  Stat.  90. 

2  France,  1778,  Art.  24,  8  Stat.  26;  Netherlands,  1782,  Art.  24, 
8  Stat.  40  ;  Sweden,  1783,  Arts.  9,  10,  8  Stat.  64,  G6. 

3  Prussia,  1785,  Art.  13,  8  Stat.  90. 

4  France,  1778,  Arts.  23,  24  ;  Sweden,  1783,  Art.  7,  8  Stat.  64  ; 
Prussia,  1785,  Art.  12,  8  Stat.  90. 

6  France,  1778,  Art.  14,  8  Stat.  20  ;  Netherlands,  1782,  Art.  12, 
8  Stat.  40 ;  Sweden,  1783,  Art.  14,  8  Stat.  68. 

6  France,  1778,  Arts.  12,  25,  27 ;  Netherlands,  1782,  Arts.  10, 
20,  25,  26  ;  Sweden,  1783,  Arts.  11,  12,  24,  25  ;  Prussia,  1785,  Arts. 
14,  15. 

T  France,  1778,  Art.  13  ;  Netherlands,  1782,  Art  11 ;  Sweden, 
1783,  Art.  13  ;  Prussia,  1785,  Art.  13. 


NOTES    UPON    LECTURE    I.  53 

These  early  treaties  thus  uniformly  asserted  LErruRK  i. 
the  nationality  of  the  United   States  not  only ''*^'"'."^ '""'''''• 

J  J    provisions  upon 

in  their  dealings  with  foreign  powers,  but  in  •'^t-uie  ludepen- 
their  relations  with  the  several  States.  The 
favored  nation  clause  put  Prussia  on  the  best 
footing  in  the  ports  of  Charleston,  Boston,  Phil- 
adelphia, and  New  York,  no  matter  what  the 
Legislatures  of  South  Carolina,  Massachusetts 
Pennsylvania,  or  New  York  might  say.  Aliens 
were  permitted  to  hold  personal  property  and 
dispose  of  it  by  testament,  donation,  or  other- 
wise, and  the  exaction  of  State  dues  in  excess 
of  those  exacted  from  citizens  of  the  State  in 
like  cases  were  forbidden.  .  The  right  was  se- 
cured to  aliens  to  frequent  the  coasts  of  each 
and  all  the  States,  and  to  reside  and  trade  there. 
Resident  aliens  were  assured  against  State  legis- 
lation to  prevent  the  exercise  of  liberty  of 
conscience  and  the  performance  of  religious 
worship ;  and  when  dying,  they  were  guaran- 
teed the  right  of  decent  burial  and  undisturbed 
rest  for  their  bodies.^ 

In  1784  sundry  letters  from  Ministers  of  the  Jefferson's  Consu- 
United  States  in  Europe  having  been  i^ef erred  ^^[^^^^  p^J^^^"^'*''^ 
to  a  special  committee,  of  which  Mr.  Jefferson 
was  chairman,  Congress,  on  the  recommendation 
of  that  committee,  by  a  vote  of  ^eight  States  to 
two,  resolved  to  instruct  their  Ministers  "  that 
these  United  States  be  considered,  in  all  such 
treaties,  and  in  every  case  arising  under  them, 


1  Netherlands,  1782,  Art.  4,  8  Stat.  34  ;   Sweden,  1783,  Art.  5, 
8  Stat.  62  ;  Prussia,  1785,  Art.  11,  8  Stat.  90. 


64  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  I.         as  One  Nation,  upon  tlie  principles  of  the  Fed- 

Jefferson's  Consu-  t    r^  i-i.     -•         "  i 

larconveutiou     era!  Constitution. 

with  France.  At  onc   time   a  postal  convention  was    con- 

templated between  France  and  the  United  States. 
A  scheme  was  submitted  by  the  French  minis- 
ter, which  Jay  answered  by  a  counter  proposal ;  ^ 
but  nothing  came  of  it. 

In  1788  Mr.  Jefferson,  as  Minister  of  the 
United  States  in  France,  concluded  a  Consular 
Convention  with  that  power,  which  went  still 
further.  It  authorized  French  Consuls,  in  cer- 
tain cases,  to  administer  upon  the  estates  of 
their  deceased  countrymen  in  the  several  States ; 
to  exercise  police  powers  over  French  vessels  in 
American  ports ;  to  arrest  officers  or  crews  of 
such  vessels ;  to  require  the  courts,  at  a  time 
when  no  Federal  Courts  existed,  to  aid  them  in 
the  arrest  of  deserters ;  and  it  clothed  them 
with  authority,  as  judges,  to  decide  all  differ- 
ences and  disputes  arising  between  their  country- 
men and  the  United  States.^ 


1  3  Secret  Journals  of  Congress,  453. 

2  1  Diplomatic  Correspondence,  1783-89,  pp.  185,  201. 

8  Consular  Convention  of  1788  with  France,  Arts.  5,  8,  9,  12. 
In  his  autobiography  Mr.  Jefferson  gives  an  account  of  this  con- 
vention:  "A  consular  convention  had  been  agreed  on  in  1784 
between  Dr.  Franklm  and  the  French  Government,  containing 
several  articles  so  entirely  inconsistent  with  the  laws  of  the  several 
States,  and  the  general  spirit  of  our  citizens,  that  Congress  with- 
held their  ratification,  and  sent  it  back  to  me,  with  instruction  to 
get  those  articles  expunged,  or  modified  so  as  to  render  them 
compatible  with  our  laws.  The  minister  unwillingly  released  us 
from  these  concessions  which,  indeed,  authorized  the  exercise  of 
powers  very  offensive  in  a  free  State.  After  much  discussion,  the 
convention  was  reformed,  in  a  considerable  degree,  and  was  signed 
by  the  Count  Montmorin  and  myself  on  the  14th  of  November, 


NOTES    UPON    LECTURE    I.  55 

It    SO   happened    that    this    treaty,   although  lecture  i. 
negotiated   and   signed   before   the  Constitution  \^j.  co^nvVntioir"' 
took  effect,  had  not  been  ratified  when  Wash-  with  Frauce. 
ington  took  the  oath  of  office.      On  the   11th  of 
June,  1781),  it  was  laid  before  the  Senate,  for  its 
constitutional    action,    being    the    first    foreign 
treaty   upon    which    that    body    passed.      The 
Secretary  of  State  —  then  styled  Secretary  for 
Foreign    Affairs  —  appeared  before   the   Senate 
and  explained  its  provisions;  and  it  was  unani- 
mously ratified  by  men,  many  of  whom  were 
fresh  from   the  Convention  which  framed   the 
Constitution. 

That  instrument  gives  to  the  President  power 
to  make  treaties  by  and  with  the  advice  and 
consent  of  the  Senate.  This  power  was  con- 
ferred, w^ith  full  knowledge  of  this  repeated 
exercise  by  the  Continental  Congress  of  its 
treaty-making  power  in  limitation  and  curtail- 
ment of  the  power  of  the  States.  This  may 
fairly  be  regarded  as  a  contemporaneous  construc- 
tion of  the  Constitution  by  those  who  framed  it. 

3.     The  Nortlvwest  Territory. 

In  the  acquisition  of  the  territory  northwest  The  cession  of 
of  the  Ohio,  and  in  the   legislation  which  ex-  *^^  .f  "^western 

'  o  territory,  and  the 

eluded  slavery  from  it,  and  which  provided  for  passage  of  the 

-,      p    .  ^      •      •         •     i       ii       TT    •  'j^     ^         ij  Ordinance  of  1787. 

its  luture  admission  into  the  Union,  as  it  should 
become  settled,  the  Congress  of  the  Confederation 


1788  ;  not,  indeed,  such  as  I  would  have  wished,  but  such  as  could 
be  obtained  with  good  humor  and  friendship. "  —  1  Jefferson's 
Works,  85. 


56  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  I.  exercised  One  of  the  highest  attributes  of  sover- 
themnZeLrn  ^ignty  in  a  matter  in  which  no  individual  State 
territory,  and  the  took  a  Separate  part.  It  was  the  United  States 
chSanceof  1787.  of  America  which  accepted  the  deeds  of  cession, 
and  which  thereby  acquired  a  Colonial  Empire. 
In  the  words  of  the  Legislature  of  Maryland, 
enacted  before  the  cession  was  made,  "  the  sov- 
ereignty over  the  Western  territory  was  vested 
in  the  United  States  as  one  undivided  and 
independent  nation."  ^  As  such  it  accepted  the 
cession  on  the  1st  of  March,  1784 ;  and  as  such, 
on  the  13th  day  of  July,  1787,  it  enacted  the 
Ordinance  under  ^hich  five  States  (Ohio,  Indi- 
ana, Illinois,  Wisconsin,  and  Michigan)  were 
gradually  settled  and  admitted  to  the  Union. 
One  will  search  the  Articles  of  Confederation 
in  vain  to  find  authority  for  such  an  exercise  of 
power.  On  the  contrary,  the  Eleventh  Article, 
providing  that  "  Canada,  acceding  to  this  con- 
federation, and  joining  in  the  measures  of  the 
United  States,  shall  be  admitted  into,  and  en- 
titled to  all  the  advantages  of  this  Union  ;  but 
no  other  Colony  shall  be  admitted  into  the 
same,  unless  such  admission  be  agreed  to  by 
nine  States,"  may  be  cited  argumentatively 
against  such  authority. 

The  powers  assumed  by  the  Congress  of  the 
Confederation,  in  enacting  the  Ordinance  of 
1787,  are  now  conferred  upon  Congress  by  the 
third  section  of  the  Fourth  Article  of  the  Con- 
stitution. 

1  6  Bancroft's  Hist.  U.  S.,  last  revise,  104. 


NOTES    UPON    LECTURE    I.  67 

Thus  it  is  seen  that  the  Statesmen  in  the  lecture  i. 
Continental  Congress  felt  that  tliey  formed  °'''"""*-"" 
part  of  a  National  Government,  ruling,  in  its 
proper  sphere,  over  a  Federation  of  United 
States,  and  exercising  powers  to  which  each  of 
those  States  must  of  necessity  be  subordinate. 
The  action  of  Washington,  in  1775,  in  asking 
Congress  to  establish  Prize  Courts  with  original 
jurisdiction  ;  the  resolutions  of  Congress  in  Jan- 
uary, 1779,  above  quoted,  regarding  prizes  and 
Prize  Courts;  the  action  of  Congress  in  the  ne- 
gotiation of  the  several  treaties  above  referred 
to,  all  negotiated  without  assent  of  the  States, 
either  previously  given  or  subsequently  obtained, 
except  as  given  in  the  Articles  of  Confederation 
as  to  such  as  were  negotiated  after  they  were 
agreed  to  ;  the  assumption  of  colonial  jurisdiction 
by  Congress,  and  the  exclusion  of  slavery  from 
the  acquired  territory,  all  point  in  this  direction. 

The  simple  truth  is,  that  the  United  States, 
mider  the  Articles  of  Confederation,  like  the 
United  Colonies  after  the  battle  of  Lexington, 
existed  as  a  Sovereign  Powder  from  the  neces- 
sities of  the  emergency.  The  Colonies  were 
compacted  together  by  the  blows  of  a  common 
enemy.  The  semi-legislative  body,  Avhich  took 
the  name  of  Congress,  was  forced,  from  the 
necessities  of  the  case,  to  assume  and  exercise 
Executive  Powers  which  no  Colony  had  ever 
possessed  or  exercised.  It  found  precedent  for 
this  in  English  history ;  and  it  followed  the 
lines  of  the  race  to  which  its  members  mainly 
belonged.     In  studying  the  ante-Constitutional 


58  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  I.         history  of  the  United  States,  we  may  often  find 
esume.  Congress  weak  in   action,  but  never  irresolute 

or  weak  in  asserting  its  Federal  powers.  Before 
the  Declaration  of  Independence  it  claimed  and 
exercised  the  National  Powers  which  until  then 
had  been  wielded  by  the  king  of  Great  Britain. 
When  that  Declaration  was  proclaimed,  it  pressed 
this  claim  with  stronger  emphasis,  if  not  with 
better  right.  This  power  it  handed  over  to  the 
government  of  the  Confederation,  which  was  in 
fact  the  Congress  itself;  and  that  government, 
in  its  turn,  deposited  the  power  in  the  new 
Union,  as  defined  by  the  Constitution.  It  is 
true  that  in  the  interim  between  the  ratification 
of  the  Treaty  of  Peace,  and  the  adoption  of  the 
Constitution,  there  was  a  time  when  the  desire 
for  union  weakened.  After  all  these  powers 
had  been  claimed  and  exercised  by  Congress, 
after  the  war  was  over  and  success  had  been 
achieved  and  acknowledged,  there  came  a  day 
of  reckoning,  when  the  debts  incurred  in  prose- 
cuting the  war  had  to  be  faced  and  provided 
for.  There  then  came  a  short  hour  when  the 
enemies  of  the  Union  had  some  reason  to  look 
for  success ;  when  its  friends,  in  their  confiden- 
tial correspondence,  could  only  hope  that  this 
"epidemic  frenzy"^  would  subside.  That  day 
passed  away  when  the  Constitution  was  adopted. 

1  Hamilton  to  Washington,  September  30,  1783.     1  Hamilton's 
Works,  402,  403. 


11. 


THE   PRINCIPLES   OF   CONSTRUCTION 
OF  THE   CONSTITUTION.^ 


If  we  desire  to  consider  the  subject  of  con-  lecture  ii. 
stitutional  law,  to  obtain  some  idea  as  to  what  ^'^f ^T*!!.™!^' 

'  civil  government. 

is  meant  by  that  phrase,  and  to  examine  the 
elementary  doctrines  which  underlie  all  written 
constitutions,  we  can  select  no  better  text  than 
the  Constitution  of  the  United  States.  It  is  of 
all  existing  foundations  of  civil  government  the 
most  important,  as  well  as  the  best  which  the 
wisdom  of  man  has  yet   devised,^  and  its  con- 

1  In  the  manuscript. notes  left  by  Mr.  Justice  Miller,  this  was 
Lecture  I  of  the  lectures  delivered  by  him  before  the  classes  of  the 
University  Law  School.     It  was  delivered  January  24th,  1890. 

2  Freeman  gives  four  commonwealths  which  have  most  perfectly 
realized  the  Federal  idea  in  history. 

1.  The  Achaian  League,  in  the  latter  days  of  ancient  Greece, 
whose  most  flourishing  period  comes  within  the  third  century. 
(B.C.  281-146.) 

2.  The  Confederation  of  the  Swiss  Cantons,  which,  with  many 
changes  in  extent  and  constitution,  has  endured  since  the  thirteenth 
century,     (a.d.  1291.) 

3.  The  Seven  United  Provinces  of  the  Netherlands,  whose  union 
arose  in  the  war  of  independence  against  Spain,  and  lasted  in  a 
republican  form  till  the  French  Revolution,     (a.d.  1579-1795.) 

4.  The  United  States  of  America.  History  of  Federal  Gov- 
ernment, p.  5. 

Jefferson  wrote  soon  after  the  formation  of  the  Constitution: 
"  The  example  of  changing  a  constitution  by  assembling  the  wise 

69 


60  LECTURES    ON    CONSTITUTIONAL   LAW. 

Lecture  II.        sideration  will  most  clearly  and  forcibly  suggest 

Different  forms  of  .i  i         •       •    i  i  •    i  j.         i      j.i 

civil  government,  tliosc  general  principles  upon  which  not  only  the 
institutions,  but  the  preservation  and  well-being 
of  all  constitutional  governments  depend. 

It  is  first  of  all  necessary  to  have  a  clear  idea 
of  what  is  meant  by  the  word  "  constitution"  as 
applied  to  the  various  forms  of  civil  government, 
before  entering  upon  the  rules  for  the  construc- 
tion and  application  of  its  provisions  or  an 
exposition  of  constitutional  law.  As  was  well 
said  by  Judge  Bates,  afterwards  Chief  Justice 
of  the  Supreme  Court  of  Missouri,  in  an  argu- 
ment before  that  court  in  the  case  of  Hamilton 
V.  St.  Louis  County  Court^  "  it  is  easier  to  tell 
what  a  constitution  is  not,  than  to  tell  what  it 
is."  As  a  constitution  has  relation  to  the  form 
of  a  government  and  to  the  mode  in  which  its 
powers  are  to  be  exercised,  let  us  consider  briefly 
the  nature  of  the  elementary  forms  under  which 
it  can  be  organized.  These  are  primarily  of 
three  kinds,  into  which  both  reason  and  author- 
ity agree  that  all  forms  of  government  may  be 
reduced,  namely,  a  monarchy,  a  democracy,  and 
an  aristocracy.^ 

men  of  the  state,  instead  of  assembling  armies,  will  be  worth  as 
much  to  the  world  as  the  former  examples  we  had  given  them. 
The  Constitution  too,  which  was  the  result  of  our  deliberations, 
is,  undoubtedly,  the  wisest  ever  yet  presented  to  men."  3  Works,  12. 
The  basis  of  the  English  constitution,  the  capital  principle  on 
wliich  all  others  depend,  is  that  the  legislative  power  belongs  to 
Parliament  alone  ;  that  is  to  say,  the  power  of  establishing  laws 
and  of  abrogating,  changing,  or  explaining  them.  De  Lolme,  Con- 
stitution of  England  (London,  1834),  p.  49. 

1  16  Missouri,  3,  13. 

2  Writers  have  divided  governments  into  various  classes.  The 
most  usual  division  is  into  monarchy,  aristocracy,  and  democracy. 


PEINCIPLES    OF    ITS    CONSTRUCTION.  Gl 

A  pure  monarchy  means  a  despotism,  a  gov-  lecture  ii. 
ernment  where  the  supreme  power  is  lodged  in  p""^^  ""•^"^''^  y- 
the  hands  of  one  man,  a  monarch,  an  autocrat, 
or  whatever  else  he  may  be  called,  who,  in  his 
own  discretion,  discharges  all  the  functions  of 
the  executive,  legislative,  and  judicial  depart- 
ments of  the  government.  He  decides  contro- 
versies between  private  individuals,  makes  the 
laws  by  which  their  determination  is  to  be  con- 
trolled, and  executes  his  own  decrees. 

A  pure  democracy  is  one  in  which  every  trans-  a  pure  democ- 
action  of  common  interest  and  private  justice  is  ^^^^' 
brought  before  the  entire  body  of  the  people, 
and  they  determine  what  shall  be  done  in  the 
premises ;  the  government  "  of  the  people,  by 
the  people,  for  the  people."  They  make  and 
administer  the  law,  they  hear  and  decide  cases, 
and  they  execute  their  judgments. 

A  pure  aristocracy  is  a  form  of  government  a  pure  aristoc- 
in  which  these  powers  are  held  and  exercised  ^^^^' 
by  a  few  favored  individuals,  a  limited  number 
of  prominent  men  who  have  become   such  by 
their  greater  wealth  or  power,  or  by  inheritance. 

I  am  not  aware  that  there  exists  at  this  day  Examples  of  these 
in  any  civilized  country  a  pure  example  of  either  ^^'^^' 

Grimke,  Nature  and  Tendency  of  Free  Institutions,  7.    (Ed.  Cincin- 
nati, 1848.) 

Freeman  says,  "A  more  philosophical  division  perhaps  is  that 
which  does  not  look  so  much  to  the  nature  of  the  hands  in  which 
supreme  power  is  vested,  as  to  the  question  whether  there  is  any  one 
body  or  individual  which  can  fairly  be  called  supreme.  This  is  the 
division  of  monarchies,  aristocracies,  and  democracies  respectively, 
into  absolute  and  constitutional  examples  of  their  respective 
classes."  History  of  Federal  Government,  p.  15.  See  Calhoun's 
Works,  vol,  1,  pp.  28,  34. 


62  LECTUEES    ON    CONSTITUTIONAL    LAW. 

Lecture  II.        of  tliGse  forms  of   government.      The  Chinese 

Examples  of  these  i         •  i  •        ^  •  j. 

iormsr  monarchy  is   a  close   approximation  to  a  pure 

type,  Russia  is  known  as  an  "  absolute  mon- 
archy,"  and  the  history  of  Athens  and  Rome 
shows  the  former  existence  there  of  a  near  ap- 
proach to  a  pure  democracy.  Perhaps  the  purest 
example  of  an  aristocracy  was  the  Venetian 
Government,  which  was  successfully  carried  on 
for  a  long  time,  and  attained  great  power.  In 
a  modified  form  an  aristocracy  may  be  said  to 
govern  to-day  in  England,  but  it  is  united  with 
a  monarchy.^  Indeed,  all  modern  governments 
in  civilized  countries  are  combinations  and  modi- 
fications of  these  three  forms. 
The  United  states  The  United  States  is  a  woiiderful  illustration 
a  combination  of  ^^  their  harmouious  combination,  preserving;  for 

the  best  in  each.  '  ^  o 

the  benefit  of  the  people  most  of  the  advantages 
and  the  best  points  inherent  in  each  system.  We 
have  an  executive  who  is  not  hereditary,  but 
elective ;  a  legislative  body  elected  by  the  people ; 
and  a  judicial  body  separated  from  and  which 
may  be  said  to  be  independent  of  the  other  two.^ 

1  As  described  by  Sir  William  Blackstone  and  his  followers,  the 
British  is  a  despotic  government.  It  is  a  government  without  a 
people.  In  that  government,  as  so  described,  the  sovereignty  is  pos- 
sessed by  the  Parliament.  In  the  Parliament,  therefore,  the  su- 
preme and  absolute  authority  is  vested :  in  the  Parliament  resides 
that  uncontrollable  and  despotic  power  which  in  all  governments 
must  reside  somewhere.  The  constituent  parts  of  the  Parliament 
are  the  King's  Majesty,  the  Lords  Spiritual,  the  Lords  Temporal 
and  the  Commons.  The  king  and  these  three  estates  together  form 
the  great  corporation  or  body  politic  of  the  kingdom.  .  .  .  What, 
then,  or  where,  are  the  people  ?  Nothing  !  Nowhere  !  They  are 
not  so  much  as  even  the  baseless  fabric  of  a  vision.  From  legal 
contemplation  they  totally  disappear.  Mr.  Justice  Wilson,  in  Chis- 
holm  v.  Georgia,  2  Dall.  419,  462. 

2  "  There  are  two  classes  of  Federal  Commonwealths.     I.  The 


tion  is. 


PRINCIPLES    OF    ITS    CONSTRUCTION.  63 

The  term  "  constitution  "  may  be  applied,  not  lecture  ii. 
improperly,  to  the  guiding  principles  underlying  ^^'^^  ^  constim- 
all  these  varying  forms  of  government,  whether 
they  are,  or  are  not,  established  by  any  written 
instrument/      No  doubt  an  intelligent  Russian 


system  of  Confederate  States,  where  the  central  power  deals  only 
with  the  State  governments.  2.  The  composite  State,  where  the 
central  power  acts  directly  on  citizens."  Freeman,  History  of 
Federal  Government,  11.  To  the  latter  class  the  United  States 
belongs,  or  as  expressed  in  the  language  of  Mr.  Justice  John- 
son :  "To  me  the  Constitution  appears,  in  every  line  of  it,  to  be  a 
contract,  which  in  legal  language  may  be  denominated  tripartite. 
The  parties  are  the  people,  the  States,  and  the  United  States." 
Martin  v.  Hunter's  Lessee,  1  Wheat.  304,  373. 

*  1  The  word  "constitution"  in  the  time  of  the  Roman  Empire 
signified  a  collection  of  laws  or  ordinances  made  by  the  emperor. 
It  is  so  used  in  the  early  history  of  English  law  ;  as,  the  Constitution 
of  Clarendon.  In  its  modern  use  it  has  been  restricted  to  those 
rules  which  concern  the  political  structure  of  society.  Encyclo- 
psedia  Britannica,  tit.  Constitution. 

A  constitution  is  the  fundamental  law  of  a  free  country,  which 
characterizes  the  organism  of  the  country  and  secures  the  rights  of 
the  citizen  and  determines  his  main  duties  as  a  freeman.  Bou- 
vier's  Law  Dictionary. 

The  body  of  fundamental  laws,  as  contained  in  written  docu- 
ments or  established  by  prescriptive  usage,  which  constitutes  the 
form  of  government  for  a  nation.  State,  community,  association,  or 
society  ;  as,  "  The  constitution  of  the  United  States,"  "  The  British 
constitution.''''  (Roman  Law.)  Decrees  of  regular  authorities,  par- 
ticularly of  the  emperors.     Worcester's  Dictionary. 

The  principles  or  fundamental  laws  which  govern  a  State  or 
other  organized  body  of  men,  and  are  embodied  in  written  docu- 
ments, or  implied  in  the  institutions  and  usages  of  the  country  or 
society  ;  organic  law.     Webster's  Dictionary. 

"  There  is  one  great  and  happy  feature  in  the  Constitution  of 
the  LTnited  States";  " provision  is  made  for  the  admission  of  new 
States  iipon  equal  terms  with  the  old  ones.  For  Europe  there  re- 
mained the  sad  necessity  of  revolution.  For  America,  the  gates  of 
revolution  are  shut  and  barred  and  bolted  down,  never  again  to 
be  thrown  open  ;  for  it  has  found  a  legal  and  peaceful  way  to  intro- 
duce every  amelioration."  Bancroft's  History  of  the  Constitution, 
1st.  ed.  vol.  2,  p.  334. 

France  had  no  parliamentary  machinery  for  effecting  desired  or 


G4  LECTURES    ON    CON"STITUTIONAL   LAW. 

Lecture  II.        might  speak  of  the  constitution  of  the  Russian 

What  a  coDstitu-  i         i  i-ii  ii  iij^ii 

tionis.  monarchy,  by  which  lie  would  mean  that  there 

were  certain  limitations  upon  the  power  of  his 
sovereign,  that  there  were  certain  privileges  per- 
taining to  the  nobility  which  could  not  be  in- 
vaded, that  the  serfs  which  belonged  to  the 
crown  having  been  emancipated,  no  power  could 
reinstate  the  old  order  of  things.  These  invis- 
ible unwritten  barriers,  surrounding  the  action 
of  the  despot,  are  comprehended  under  this  use  of 
the  word  "  constitution."  ^  No  doubt  an  educated 
Turk  might  allude  to  the  constitution  of  the 
Turkish  Government,  by  which  he  would  mean 

needful  changes  in  its  constitution,  so  that  the  right  of  revolution, 
as  it  was  called,  became  a  necessity  on  the  part  of  those  who  con- 
ceived that  they  embodied  and  were  in  a  position  to  express  the 
popular  will. 

1  "  Quodcumque  ergo  imperator  per  epistolam  constituit,  vel 
cognoscens  decrevit,  vel  edicto  praecepit,  legem  esse  constat ;  hae 
sunt  quae  constitutiones  appellantur.  Justinian,  Inst.  Lib.  I,  tit. 
2,  pi.  6. 

The  French  "  Charte  "  is  the  most  remarkable  of  the  European 
constitutions.  Like  the  Magna  Charta  it  was  wrested  from  the 
king  ;  it  was  not  the  act  of  a  popular  convention.  It  is  said  to  be 
a  settled  maxim  in  France  that  it  can  never  be  altered.  See 
Grimke  on  Nature  and  Tendency  of  Free  Institutions,  p.  129. 

Jameson,  in  his  work  on  Constitutional  Conventions,  divides 
political  constitutions  with  reference  to  the  mode  in  wliich  they 
originated  into  two  classes,  accumulated  or  cumulative  and  en- 
acted, p.  75.  Those  of  ancient  Rome  and  England  belong  to  the 
first  class.  The  Reform  Act  is  considered  by  the  English  as  much 
a  portion  of  the  constitution  as  trial  by  jury,  or  the  reiiresentative 
system,  which  have  never  been  enacted,  but  correspond  to  what 
Cicero  calls  leges  natoe,  or  "grown  law."  To  the  second  class 
belong  the  Federal  constitution  and  those  of  the  several  States ; 
that  is,  they  were  at  a  certain  time  and  by  a  certain  authority  en- 
acted as  the  fundamental  law  of  the  body  politic.  Encyclopaedia 
Americana,  tit.  Constitution ;  Hallam's  Constitutional  History  of 
England  ;  Shepherd's  Constitutional  Text-Book ;  Elliot's  Debates 
on  the  Federal  Constitution. 


PRINCIPLES    OF    ITS    CONSTRUCTION.  65 

that  the  sultan  was  bound  to  admmister  justice,  lectuee  ii. 

1,1,1  1  J.    •    i.*  i      What  a  constitu- 

and  that  he  was  under  many  restrictions  as  to  ^j^^  j^ 
the  counsellors  with  whom  he   must   surround 
himself  as  well  as  to  the  methods  by  which  he 
should  administer  the  affairs  of  the  kingdom.^ 

We  are  all  familiar  with  the  frequent  allu- British  constuu- 
sions  made  by  English  statesmen  to  the  British  ^^°"" 
Constitution,  which  are  repeated  by  every  writer 
on  the  subject  in  that  country.  And  they  mean 
what  they  say ;  they  have  in  their  sense  a  con- 
stitution ;  that  is  to  say,  they  have  for  hundreds 
of  years  had  a  monarchy  in  which  the  powers 
of  the  sovereign  have  been  confined  within  very 
narrow  limits,  much  more  restricted  in  many 
respects  than  those  confided  to  the  President  of 
the  United  States  under  our  Constitution.  So 
that  the  term  "  constitutional  government  "  has 
come  to  be  generally  used  in  contradistinction 
to  absolutism.  Their  judiciary  is  also  indepen- 
dent of  the  law-making  power,  which  is  a  parlia- 
ment composed  of  the  House  of  Lords  and  the 
Commons,  the  latter  of  which  is  elective.  It  is 
much  older  than  ours,  having  begun  to  exist  in 
times  when  statesmen  were  not  much  accus- 
tomed to  frame  exact  definitions ;  but  if  the 
great  length  of  its  duration  and  the  admiration 

^  Some  English  writers  speak  of  the  constitution  of  the  Turkish 
Empire.    See  Hallam's  Constitutional  History  of  England. 

The  emperor  of  China  is  bound  by  ancient  laws  and  customs, 
and  could  scarcely,  without  danger,  if  he  would,  disregard  the 
advice  or  remonstrances  of  his  ministers  or  the  boards  of  admin- 
istration.    American  Cyclopaedia,  tit.  China. 

A  collection  of  ecclesiastical  regulations  appeared  in  the  fourth 
century,  attributed  to  the  apostles,  but  generally  supposed  to  be 
spurious,  known  as  "  apostolical  constitutions." 


60  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkctijre  II.        of  the  English  people  for  it,  together  with  their 
British  constitu-    ^^^,^^^^  |-)g|-gf  ^^^  i^s  ^.^^^^g  ^^^^  perpetuity,  are 

evidences  of  its  worth,  then  it  is  clear  that  they 

have  a  good  constitution.^ 
A  constitution  is        But  ill  America  when  we  speak  of  a  constitu- 
a  written  instru-   ^^^^^    ^g  refer  to  a  written  instrument,  one  in 

meut,  as  under-  "  ' 

stood  in  America,  wliicli  the  powers  granted  and  duties  imposed 
by  it  are  reduced  to  writing.^     The  earliest  con- 

1  It  was  during  the  thirteenth  century  that  first  appeared  with 
distinctness  that  Constitution  which  has  ever  since,  through  all 
changes,  preserved  its  identity  ;  of  which  all  the  other  free  consti- 
tutions in  the  world  are  copies,  and  which,  in  spite  of  some  defects, 
deserves  to  be  regarded  as  the  best  under  which  any  great  society 
has  ever  yet  existed  during  many  ages.  .  .  .  Yet  the  present  Con- 
stitution is  to  the  one  of  five  hundred  years  ago  what  the  tree  is  to 
the  sapling,  what  the  man  is  to  the  boy.  The  alteration  has  been 
great.  ...  A  constitution  of  the  Middle  Ages  was  not  like  one  of 
the  eighteenth  or  nineteenth  century,  created  entire  by  a  single  act, 
and  fully  set  forth  in  a  single  document.  Macaulay's  History  of 
England,  vol.  1,  pp.  lG-28. 

The  English  Constitution  is  largely  unwritten,  using  the  word 
as  we  do  of  unwritten  law  ;  its  rules  are  found  in  no  written  docu- 
ment, but  depend  on  precedent  modified  by  a  constant  process  of 
interpretation.  See  Encyclopaedia  Britannica,  tit.  Constitution. 
De  Lolme  says  it  has,  like  that  of  most  countries  of  Europe,  grown 
out  of  occasion  and  emergency,  and  its  earliest  history  is  involved 
in  obscurity. 

Mr.  Gladstone  has  said  with  admirable  force,  "  As  the  British 
Constitution  is  the  most  subtile  organism  which  has  proceeded 
from  progressive  history,  so  the  American  Constitution  is  the  most 
wonderful  work  ever  struck  off  at  a  given  time  by  the  brain  and 
purpose  of  man." 

2  In  American  constitutional  law,  the  word  "constitution"  is 
used  in  a  restricted  sense,  as  implying  the  written  instrument 
agreed  upon  by  the  people  of  the  Union,  or  any  one  of  the  States, 
as  the  absolute  rule  of  action  and  decision  for  all  departments  and 
officers  of  the  government,  in  respect  to  all  points  covered  by  it ; 
which  must  control  until  it  shall  be  changed  by  the  authority  which 
established  it,  and  in  opposition  to  which  any  act  or  any  regulation 
of  any  such  department  or  officer,  or  even  of  the  people  them- 
selves, will  be  altogether  void.  Cooley's  Constitutional  Limitar 
tions,  3.  , 


PRINCIPLES    OF    ITS    CONSTRUCTION.  67 

stitutions  for  the  government  of  the  ancestors  lectube  u. 
of  the  people  who  now  constitute   the  United  ^"'"''f """;"" 

^       i-  isa  written  iiistni- 

States  were  the  charters  of  the  Colonies ;  and  ment,  as  iiiuier- 
although  those  charters  were  but  grants  of  liber- ''""'^ 
ties,  rights,  and  powers  from  the  home  govern-  coiouiai  cLanera. 
ment,  not  in  all  cases  well  defined,  yet  they  w^ere 
reduced  to  writinij;  under  the  seal  of  the  kino;- 
dom  to  which  tliey  were  tributary,  and  consti- 
tuted the  foundation  and  the  formal  statement 
of  the  principles  on  which  the  colonies  adminis- 
tered their  own  domestic  affairs  and  permitted 
the  officers  of  the  parent  government  to  assist  in 
that  administration.  They  undoubtedly  con- 
tributed very  largely  towards  the  education  of 
the  people  in  those  days  in  ideas  of  constitu- 
tional liberty ;  and  they  were  in  many  respects 
much  superior  to  the  much  vaunted  British  Con- 
stitution, because  they  contained  limitations  upon 
the  legislative  power  which  were  not  found  in 
the  usages  of  the  English  Government.^     They 

1  In  England  there  is  no  written  constitution,  no  fundamental 
law,  nothing  visible,  nothing  real,  nothing  certam,  by  which  a  stat- 
ute can  be  tested.  In  America  the  case  is  widely  different.  Every 
State  in  the  Union  has  its  constitution  reduced  to  a  written  exacti- 
tude and  precision.    Vanhorne'' s  Lessee  v.  Dorrance,  2  Dall.  304,  308. 

The  power  of  the  sovereign,  "though  ample,  was  limited  by 
three  great  constitutional  principles,  so  ancient  that  none  can  say 
when  they  began  to  exist;  so  potent  that  their  natural  development, 
continued  through  many  generations,  has  produced  the  order  of 
things  under  Avhich  we  now  live.  First,  the  king  could  not  legis- 
late without  the  consent  of  his  Parliament.  Secondly,  he  could 
impose  no  taxes  without  the  consent  of  his  Parliament.  Thirdly, 
he  was  bound  to  conduct  the  executive  administration  according  to 
the  laws  of  the  land,  and,  if  he  broke  those  laws,  his  advisers  and 
his  agents  were  responsible."  IMacaulay's  History  of  England, 
vol.  1,  p.  29. 

The  principles  embodied  in  the  Acts  of  Settlement  and  the  Bill 
of  Rights  are  the  basis  of  the  English  Constitution.     De  Lolme. 


68  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  II.        also  Contained    assertions  of   individual  rights, 

Colonial  charters.       i-i  ii  £    ^^  i  iii  i 

which  were  not  always  luUy  acknowledged,  and 
thus  not  only  contributed  in  that  way  to  educate 
the  people  in  a  knowledge  of  their  rights  and 
of  the  just  powers  of  the  government,  but  also 
taught  them  the  necessity  and  propriety  of  hav- 
ing such  rights  and  powers  fixed  by  a  written 
instrument.* 
Previous  attempts      There  liavc  been  other  written  constitutions 

at  written  cousti-    I'lii  oi  i  iiri 

tutions.  besides  these,     bolon  drew  up  a  body  oi  laws 

for  the  Athenian  State,  and  Lycurgus  one  for 
Sparta.  Some  of  the  governments  of  Europe 
have  attempted  to  formulate  such  instruments.^ 
Comprehensive  laws  or  decrees  have  been  called 
constitutions,  and  France  may  be  instanced  as 
a  country  which  has  had  something  which  has 


1  The  general  principles  which  are  the  groundwork  of  modem 
constitutions,  —  principles  which  were  imperfectly  known  in  Eu- 
rope, and  not  completely  triumphant  even  in  Great  Britain,  in  the 
seventeenth  century,  —  were  all  recognized  and  determined  by  the 
laws  of  New  England :  the  intervention  of  the  people  in  public 
affairs,  the  free  votirig  of  taxes,  the  responsibility  of  authorities, 
personal  liberty,  and  trial  by  jury,  were  all  positively  established 
without  discussion.  De  Tocqueville,  Democracy  in  America,  vol.  1, 
p.  22  (ed.  N.  Y.  1838). 

2  Ten  or  twelve  European  States  have  adopted  written  constitu- 
tions, but  they  have  been  the  gift  of  some  self-constituted  lawgiver, 
or  imposed  by  bodies  of  men  who  very  imperfectly  represented  the 
supreme  authority  of  the  State.  None  of  them  rest  upon  the  same 
firm  foundation  as  ours,  the  sovereignty  of  the  people.  A  written 
constitution,  emanating  from  the  popular  will,  while  the  govern- 
ment was  still  a  monarchy  or  aristocracy  in  character,  would  be  a 
solecism  in  politics.  Neither  form  could  survive  the  adoption  of 
such  an  instrument.  If  not  immediately  annihilated,  they  must 
speedily  have  fallen  into  decay.  See  Grimke  on  Nature  and 
Tendency  of  Free  Institutions,  pp.  124-128. 

The  present  constitution  of  Switzerland  dates  from  1874,  on  the 
basis  of  the  previous  one  of  1848. 


PRINCIPLES    OF    ITS    CONSTRUCTION".  69 

been  called  such,  from  the  day  that  Louis  XVI  lecture  it. 

,1  1         ii  i      1  1       TP  Previous  atiompls 

was  overthrown  to  the  present  hour/  Every  ,^,  ^^i,,^„  ^„Ji. 
successive  government  established  its  written  tuUous. 
constitution,  and  the  French  people  have  had 
in  that  length  of  time  enough  such  documents 
to  suppl}?-  the  nations  of  the  earth ;  most  of  them 
probably  good  ones  if  they  had  been  able  to  suc- 
cessfully put  them  into  practice.  It  is  unneces- 
sary here  to  recall  the  history  of  that  country ; 
how  with  every  change  in  the  course  of  its 
affairs  they  abolished  the  previous  constitution 
and  established  a  new  one,  until  thinking  people 
began  to  doubt  their  capacity  for  self-govern- 
ment. 

Spain  followed  France  in  this  course,  and  al- 
though it  did  not  become  republican  until  within 
a  very  recent  period,  jet  under  French  influence 
its  people  wrung  from  Ferdinand  and  Charles 
written  constitutions,  and  such  an  instrument 
they  have  had  from  that  hour  to  this.  They 
have,  however,  frequently  risen  in  rebellion  to 

1  Napoleon  I  styled  himself  Emperor  of  the  French  "by  the  grace 
of  God  and  the  Constitution  of  the  Empire." 

De  Tocqueville,  in  his  Democracy  in  America,  says,  p.  140: 
"In  France  the  constitution  is  the  first  of  laws"  ;  and  on  p.  139 : 
"  It  is,  or  is  supposed  to  be,  immutable,  and  the  received  theory  is 
that  no  power  has  the  right  to  change  any  part  of  it  "  ;  and  again, 
p.  288  :  "  As  the  king,  the  peers,  and  the  deputies  all  derive  their 
authority  from  the  constitution,  these  three  persons  united  cannot 
alter  a  law  by  virtue  of  which  alone  they  govern.  Out  of  the  pale 
of  the  constitution  they  are  nothing." 

Charles  VII  was  the  first  French  king  who  attempted  to  form  a 
code  for  the  entire  kingdom.  Several  of  his  successors  had  the 
same  idea.  One  was  prepared  and  published  in  1G20,  but  many 
important  chapters  were  added  before  it  assumed  the  form  in  which, 
as  the  Code  of  Louis  XV,  it  represents  the  status  of  French  juris- 
prudence at  the  time  of  the  Revolution. 


70  LECTUKES    ON    CONSTITUTIONAL    LAW. 

lkctdre  II.        overthrow  their  monarch  and  get  another  con- 

Previous attempts     ,•,     ,•  j.i      j.  j:    xi  i  x, 

at  written  consti-  stitiition,  SO  that  nonc  oi  them  have  been  per- 
tutions.  manent  or  very  enduring.^     It  is  with   sorrow 

and  regret  also  that  we  see  their  descendants  on 
this  side  of  the  Atlantic,  Spanish  republicans 
they  call  themselves,  evince  scarcely  more  re- 
spect for  written  constitutions  than  the  country 
from  which  they  originally  came.^ 

So  that  it  is  evident  that  something  more 
than  a  written  constitution  is  essential  to  the 
safety  and  perpetuity  of  any  government,  and 
that  is,  a  due  reverence  by  the  people  for  it  and 
for  their  laws.  All  the  instruments  in  the 
world,  though  they  were  written  in  letters  of 
gold  upon  the  most  imperishable  tablets,  will  be 
but  as  ropes  of  sand  if  the  people  themselves  have 
no  respect  for  law  or  for  those  who  administer  it.^ 

1  But  however  imperfect  European  constitutions  in  their  prac- 
tical enforcement  may  liave  been,  they  worlc  a  great  advance  in 
government,  not  only  as  an  open  rec(%nition  of  certain  general 
principles  in  favor  of  liberty,  but  as  a  deiinite  application  of  them. 
See  Grimke  on  Nature  and  Tendency  of  Free  Institutions,  p.  129. 

"  A  written  constitution  never  adds  to,  but  always  takes  away 
from,  the  power  which  has  previously  been  exercised."     lb. 

2  The  precedent  of  Federal  union  given  by  the  English  settle- 
ments in  North  America  has  been  followed,  though  as  yet  with 
little  success  or  credit,  by  several  of  the  republics  which  have 
arisen  among  the  ruins  of  Spanish  dominion  in  the  same  continent. 
Freeman,  History  of  Federal  Government,  7. 

3  A  nation  may  establish  a  system  of  free  government,  but  with- 
out the  spirit  of  municipal  institutions  it  cannot  have  the  spirit  of 
liberty.  De  Tocqueville,  vol.  1,  p.  42  (ed.  N.  Y.  1838).  "The  Federal 
form  of  government  is  no  panacea  for  all  human  ills;  a  well-planned 
constitution  at  home  is  no  guarantee  for  wise  or  honorable  conduct 
in  foreign  affairs,"  and  will  not  hinder  among  the  people  the  devel- 
opment of  the  characteristic  virtues  and  vices  of  a  Democratic  Fed- 
eration.    Freeman  on  Federal  Government,  325,  326. 

The  formation  of  a  written  constitution  is  one  of  the  most  deci- 
sive steps  which  has  been  made  toward  the  establishment  of  free 


PKINCIPLES    OF   ITS    CONSTRUCTION.  71 


A  constitution,  in  the  American  sense  of  the  lecture  n. 

Definition  of 
coustitution. 


word,  is  a  written  instrument  by  which  the  fun-  ^*'  ""^'°"  "  * 


damental  powers  of  the  government  are  estab- 
lished, limited,  and  defined,  and  by  which  these 
powers  are  distributed  among  several  depart- 
ments, for  their  more  safe  and  useful  exercise, 
for  the  benefit  of  the  body  politic.  A  search  for 
a  more  satisfactory  definition  has  been  in  vain, 
but  this  language,  perhaps,  fairly  expresses  the 
meaning  of  the  term  in  this  country.^ 

institutions.  It  implies  the  exercise  of  reflection  in  its  highest 
degree,  an  ability  to  frame  the  most  comprehensive  rules,  and  to 
make  application  of  them  to  the  actual  affairs  of  men.  .  .  .  The 
constitutions  of  antiquity  confounded  what  we  would  characterize 
as  political  ordinances  with  the  acts  of  ordinary  legislation.  This 
was  the  case  in  the  code  of  the  Roman  decemvirs,  and  it  was 
equally  so  in  the  systems  introduced  by  the  Athenian  and  Spartan 
lawgivers.     Grimke  on  Free  Institutions,  Book  II,  c.  I. 

1  What  is  a  constitution  ?  It  is  the  form  of  government,  deline- 
ated by  the  mighty  hand  of  the  people,  in  which  certain  first  princi- 
ples of  fundamental  laws  are  established.  The  Constitution  is  fixed 
and  certain;  it  contains  the  permanent  will  of  the  people,  and  it  is 
the  supreme  law  of  the  land;  it  is  paramount  to  the  will  of  the  leg- 
islature, and  can  be  revoked  and  altered  only  by  the  authority  that 
made  it.  The  life-giving  principle  and  the  death-dealing  stroke 
must  proceed  from  the  same  hand.  ...  In  short,  the  Constitution 
is  the  sun  of  the  political  system,  around  which  the  legislative, 
executive,  and  judicial  bodies  revolve.  Whatever  may  be  the  case 
in  other  countries,  yet  in  this  there  can  be  no  doubt  that  every  act 
of  the  legislature  repugnant  to  the  Constitution  is  absolutely  void. 
Vanhor7ie''s  Lessee  v.  Dorrance,  2  Ball.  308. 

It  is  not,  however,  the  origin  of  private  rights,  nor  the  founda- 
tion of  laws,  nor  the  beginning  of  a  community.  It  is  not  the 
cause,  but  the  consequence  of  personal  and  political  freedom.  It 
declares  those  natural  and  fundamental  rights  of  individuals,  for  the 
security  and  common  enjoyment  of  which  governments  are  estab- 
lished. It  is,  in  a  word,  the  form  and  framework  of  political  gov- 
ernment, devised  for  the  protection  of  the  people,  the  instrument 
of  their  convenience,  and  is  always  a  limitation  upon  the  governing 
powers  exercised  by  their  agents. 

It  has  been  defined  to  be  a  system  of  law  established  by  the 
sovereign  power  of  a  State  for  its  own  guidance. 


72  LECTURES    ON   CONSTITUTIONAL   LAW. 

Lecture  ii.  Not  everything  in  detail  that  a  government 

ofThe  uniteV"  may  do  can  be  embraced  in  a  written  document; 
^t^iites.  that  would  fill  a  volume  like  the  statutes ;  but  the 

fundamental  principles  by  which  it  is  to  be  carried 
on  and  maintained  are  established  by  it.^  Certain 
great  powers  are  specifically  granted,  but  at  the 
same  time  certain  restrictions  are  thrown  around 
their  exercise  which  are  essential  under  our  form 
of  government  to  the  rights  of  the  States,  and  to 
the  rights  of  individuals.  For  example,  a  per- 
son's property  cannot  be  taken  for  public  use 
without  due  course  of  law  and  just  compensa- 
tion ;  his  life  or  liberty  cannot  be  taken  from 
him  without  a  fair  trial  before  a  court  of  compe- 
tent jurisdiction;^  he  shall  enjoy  the  right  to  a 
speedy  and  public  trial  by  an  impartial  jury  of 
the  State  and  district  wherein  the  crime  was 
committed;  he  shall  be  confronted  with  the  wit- 
nesses against  him,  shall  have  compulsory  pro- 
cess for  obtaining  witnesses  in  his  favor,  and 
shall  also  have  the  assistance  of  counsel  for  his 
defence.'^  These  are  some  of  the  rights  defined 
and  secured  to  those  who  live  under  the  protec- 
tion of  the  Constitution  of  the  United  States. 

This  is  a  very  remarkable  instrument  in  many 
particulars.  Perhaps  no  more  important  writ- 
ing exists  in  the  world  to-day,  affecting  its  pros- 
perity and  the  happiness  of  its  people,  outside  of 

1  In  no  written  constitution  which  ever  existed  has  there  been 
defined  or  delegated  to  officials  all  the  latent  powers  which  lie 
dormant  in  every  nation,  boundless  in  extent  and  incapable  of 
definition. 

2  Constitution,  P'iftli  Amendment. 
*  Constitution,  Sixth  Amendment. 


PRINCIPLES    OF    ITS    CONSTRUCTION.  73 

those  which  are  of  a.  religious  character.  It  is,  lecture  n. 
and  has  been  for  many  years,  the  subject  of  per-  ('nue  unit^'d'°° 
petual  exegesis  by  all  the  lawyers  and  courts  of  states, 
this  country,  representing  millions  of  inhabi- 
tants, great  and  diverse  interests,  and  very  ex- 
tensive business  relations,  all  of  which  are  more 
or  less  affected  by  its  provisions.  All  the  pre- 
vious instruments  known  in  this  country  and  in 
the  history  of  its  Colonies,  such  as  the  charters 
already  referred  to,  were  granted  by  the  ruler 
or  sovereign,  and  were  designed  to  confer  certain 
rights  and  regulate  the  relations  of  the  subjects 
with  their  monarch.  But  this  instrument  comes 
from  a  very  different  source.  It  is  one  in  which 
the  people  themselves  have  undertaken  to  frame 
an  organic  law  governing  the  relations  of  the 
whole  people,  as  well  as  of  the  individual  States, 
to  the  Federal  Government,  and  to  prescribe  in 
many  cases  the  limits  and  rules  of  private  and 
personal  rights.  It  is  the  fundamental  law  pur- 
suant to  which  the  government  is  permanently 
organized  and  conducted.^  Such  a  document, 
framed  and  put  into  written  language,  judiciously 
operative  upon  the  affairs  which  it  is  intended 
to  govern,  is  a  rare  thing  in  the  history  of  the 
world ;  and  it  may  be  said  with  safety  that  none 
has  ever  been  constructed  by  the  wisdom  or  in- 

1  Federal  Government  may  be  said  to  be  essentially  a  compro- 
mise between  two  opposite  political  systems  ;  an  intermediate  step. 
In  its  most  perfect  form  two  requisites  have  been  suggested  :  the 
complete  independence  of  each  member  of  the  Union  in  all  matters 
concerning  that  member  only,  and  that  all  must  be  subject  to  a 
central  power  in  those  matters  concerning  the  whole  body  of  mem- 
bers collectively. 


74  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  II.  genuitj  of  man  so  well  adapted  to  the  ends  it 
on\e uTite'd'"'^  ^^^^  intended  to  subserve,  or  so  successful  in  the 
States.  execution  of  those  purposes.^     It  is,  therefore,  a 

subject  unique  in  that  respect,  to  which  atten- 
tion is  here  invited. 

This,  like  all  other  instruments,  when  it  be- 
comes the  subject  of  comment  and  construction, 
must  necessarily  be  looked  at  in  the  light  of  its 
origin,  the  purposes  which  it  was  intended  to 
accomplish,  as  well  as  the  evils  which  it  was 
intended  to  remedy.  A  volume  would  hardly  be 
sufficient  to  give  a  complete  history  of  the  Con- 
stitution of  the  United  States.  It  will  be  impos- 
sible here  to  give  more  than  a  brief  outline  of 
some  of  the  principal  reasons  for  its  adoption. 
Causes  which  led  It  may,  in  a  word,  be  said  that  this  Constitu- 
to  Its  a  option.  ^-^^  arose  out  of  the  condition  in  which  the  peo- 
ple of  the  United  States  found  themselves  at  the 
close  of  the  Revolutionary  War.  Having  estab- 
lished their  independence  of  the  government  of 
Great  Britain,  and  been  recognized  as  one  of  the 
family  of  nations,  they  soon  found  that  the  com- 
pact under  which  they  had  successfully  achieved 
that  independence,  namely,  the  Articles  of  Con- 
federation, was  utterly  inefficient  and  incompe- 
tent to   answer  the    purpose  of   binding   them 


1  The  examples  of  Federal  constitutions  which  history  supplies 
are  scattered  over  widely  distant  ages  and  countries  ;  they  are 
found  among  nations  widely  differing  from  one  another  in  the 
amount  of  their  political  advancement  and  general  civilization.  .  .  . 
There  is  what  may  be  called  a  certain.  Federal  ideal,  which  has 
sometimes  been  realized  in  its  full,  or  nearly  its  full,  perfection, 
while  other  cases  have  shown  only  a  more  or  less  remote  approxi- 
mation to  it.    Freeman  on  Federal  Government,  2. 


PRINCIPLES    OP^    ITS    CONSTRUCTION.  75 

together  and  conducting  the  new  nation  on  its  lecture  ii. 
pathway  to  future  usef uhiess.^     Its  defects  were  -'^"'''  r*"'*' '"'' 

,  to  Its  adoptioa. 

many  and  obvious."'^ 

It  was  found  that  the  Colonies,  as  they  had 
been  previously  called,  had  never  really  been 
independent  States  or  Nations.  They  had  been 
subjects  of  Great  Britain,  governed  by  charters 
from  the  Crown,  or  organized  under  certain 
commissions  or  grants  by  letters  patent,  and  sub- 
mitting very  largely  to  the  legislation  of  the 
English  Parliament  until  certain  questions  con- 
nected with  taxation  caused  them  to  rebel,  not 
against  the  king,  but  against  those  laws  as  op- 
pressive and  unjust.     In  the  effort  at  resistance 


1  Madison  said  :  "The  close  of  the  war  brought  no  cure  for  the 
public  embarrassments.  The  States,  relieved  from  the  pressure  of 
foreign  danger,  and  tlush  with  the  enjoyment  of  independent  and 
sovereign  power,  instead  of  a  diminished  disposition  to  part  with 
it,  persevered  in  omissions  and  in  measures  incompatible  with  their 
relations  to  the  Federal  Government,  and  with  those  among  them- 
selves."    5  Elliot's  Debates,  112. 

2  The  first  number  of  the  Federalist  opens  with  the  statement : 
"After  full  experience  of  the  ineificacy  of  the  existing  Federal 
Government,  you  are  invited  to  deliberate  upon  a  New  Constitution 
for  the  United  States  of  America  "  ;  and  in  No.  15  the  author  says, 
"It  may  perhaps  be  asked  what  need  there  is  of  reasoning  or  proof 
to  illustrate  a  position  [the  insufficiency  of  the  present  Confedera- 
tion to  the  preservation  of  the  Union]  which  is  neither  controverted 
nor  doubted ;  to  which  the  understandings  and  feelings  of  all 
classes  of  men  assent ;  and  which,  in  substance,  is  admitted  by  the 
opponents  as  well  as  by  the  friends  of  the  New  Constitvition  ?  It 
must  in  triith  be  acknoAvledged,  that  however  these  may  differ  in 
other  respects,  they  in  general  appear  to  harmonize  in  the  opinion 
that  there  are  material  imperfections  in  our  national  system,  and 
that  something  is  necessary  to  be  done  to  rescue  us  from  impending 
anarchy.  .  .  .  Each  State,  yielding  to  the  persuasive  voice  of 
immediate  interest  or  convenience,  has  successively  withdrawn  its 
support,  till  the  frail  and  tottering  edifice  seems  ready  to  fall  upon 
our  heads,  and  to  crush  us  beneath  its  ruins." 


76  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  II.  they  liacl  united  together  in  a  body  to  make  the 
loTad'IpSn.''^  struggle  successful ;  so  that,  although  being  a 
government  or  nation  when  they  became  free, 
each  individual  Colony  had  never  been  at  any 
time  a  separate  and  independent  State,  and  yet 
none  of  them  recognized  any  supremacy  in  any 
other  State.  The  question  was,  how  much 
should  they  grant  or  yield  to  the  common  gov- 
ernment which  they  were  about  to  form  in  the 
common  interest  of  self  preservation  ;  for  it  was 
soon  discovered  that  the  one  which  had  carried 
them  through  the  war,  in  the  paroxysm  of  patri- 
otism necessary  for  self-defence,  was  incapable  of 
carrying  on  a  successful  government  after  that 
impulse  was  gone.^ 

One  of  the  most  pressing  evils  to  be  remedied 
by  the  reorganization  of  the  Central  Government 
was  in  relation  to  the  collection  of  revenues  for 
its  support,  for  it  had  been  found  that  taxes 
could  not  be  successfully  collected  for  that  pur- 
pose.^    Its  only  reliance  during  the  Revolution- 

1  "  The  radical  infirmity  of  the  Articles  of  Confederation  was 
the  dependence  of  Congress  on  the  vohintary  and  simultaneous 
compliance  with  its  requisitions  by  so  many  independent  communi- 
ties, each  consulting  more  or  less  its  particular  interests  and  con- 
venience, and  distrusting  the  compliance  of  the  others."  Mr. 
Madison:  5  Elliot's  Debates,  112. 

2  The  requisitions  of  Congress  under  the  Confederation  were  as 
constitutionally  obligatory  as  the  laws  enacted  by  the  present  Con- 
gress. That  they  were  habitually  disregarded  is  a  fact  of  universal 
notoriety.     Colipns  v.  Virginia,  6  Wheat.  2G4,  388. 

Among  the  debilities  of  the  government  of  the  Confederation, 
no  one  was  more  distinguished  or  more  distressing  than  the  vitter 
impossibilty  of  obtaining  from  the  States  the  moneys  necessary 
for  the  payment  of  debts,  or  even  for  the  ordinary  expenses  of  the 
government.    Jefferson's  Works,  vol.  1,  p.  82. 

The  great  office  of  the  Confederation  was  to  demonstrate  to  the 


PRINCIPLES    OF    ITS    CONSTRUCTION.  77 

ary  War  and  down  to  the  year  1789,  when  the  lecture  ii. 
present  form  of  government  Avas  fully  organized,  IJi^tTadlpUoQ.^'* 
was  by  a  call  or  request  upon  the  States  for 
their  proportion  of  the  amount  necessary  for  its 
support.^  Even  during  the  pendency  of  the  war 
such  calls  were  responded  to  very  feebly  and 
unequally,  and  hence  that  war  was  fought  on 
credit,  leaving  an  immense  debt  to  be  paid  at 
its  close.  After  the  enthusiasm  of  the  war  had 
died  away,  and  the  independence  of  the  Colonies 
had  been  conceded,  it  was  still  more  difficult  to 
obtain  funds  in  that  way,  and  there  was  no  re- 
lief to  be  had  through  taxation  of  the  people 
by  the  General  Government.^ 

Another  evil  was,  that,  although  it  had  come 
to  be  recognized  as  one  of  the  nations  of  the 
earth,  this  so-called  Central  or  General  Govern- 
ment had  no  sufficient  powers  conceded  to  it  by 
the  States  in  order  to  properly  conduct  its  affairs 
with  foreign  governments.     It  had  no  capacity 

people  of  the  American  States  the  practicability  and  necessity  of  a 
more  perfect  union.     1  Curtis'  Const.  150. 

1  To  the  puri^oses  of  public  strength  and  felicity  that  Con- 
federacy was  totally  inadequate.  A  requisition  on  the  several 
States  terminated  its  legislative  authority.  Executive  or  judicial 
authority  it  had  none.      Chisholm  v.  Geonjia,  2  Dall.  419,  403. 

-  April  o,  1784,  Mr.  Jefferson,  as  chairman  of  a  grand  committee, 
made  a  report  upon  the  arrears  of  interest  on  the  public  debt,  in 
which  he  refers  to  the  requisitions  that  have  been  made  upon  the 
various  States,  and  complains  that  the  payments  have  been  small 
and  slow.    Journal  of  Congress,  vol.  9,  p.  103. 

Madison  uses  the  following  terse  langviage,  Febnian^  25,  1787  : 
"Our  situation  is  every  day  becoming  more  and  more  critical.  No 
money  comes  into  the  Federal  treasury ;  no  respect  is  paid  to 
Federal  authority ;  and  people  of  reflection  unanimously  agree 
that  the  existing  Confederacy  is  tottering  to  its  foundation."  6 
Elliot's  Debates,  p.  106. 


7b  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  II.        to  make  treaties,  except  on  a  limited  class  of 

Causes  wliich  led         i  •       i  Ti.  i      j  ±  '  •  i 

to  its  adoption.  siiDJects.  It  had  no  means  to  raise  armies  and 
navies,  or  to  pay  the  national  debt ;  and  no  one 
could  tell  how  far  each  State  could  itself  nego- 
tiate with  other  nations,  or  how  soon  tliey  would 
be  subjected,  as  were  the  Grecian  republics  in 
the  days  of  the  Amphictyonic  councils,^  to  the 
influence  of  other  nations  who  might  approach 
any  one  of  them  for  the  purpose  of  inducing  it 
to  withdraw  from  the  Union. 

But  perhaps  of  all  the  causes  which  contributed 
to  the  formation  of  the  new  Constitution,  one  of 
the  most  effective,  like  some  little  fretful  thing 
that  seems  unimportant  but  which  perpetually 
annoys  you,  was  the  condition  of  their  foreign 


1  The  Amphictyons,  or  association  of  neighboring  tribes  or 
cities,  were  tlie  germ  of  one  of  the  strongest  bonds  of  union  by 
which  the  Greek  tribes  were  lield  togetlier.  American  Cyclo- 
paedia, tit.  Amphictyons. 

The  council  not  a  Federal  Government,  a  union  not  of  cities, 
but  of  tribes.  See  Freeman  on  Federal  Government,  p.  123,  for 
a  full  history  of  its  origin  and  character. 

' '  Philip  of  Macedon  by  his  intrigues  and  bribes  won  over  to  his 
interests  the  popular  leaders  of  several  cities ;  by  their  influence 
and  votes  gained  admission  into  the  Amphictyonic  council ;  and  by 
his  arts  and  his  arms  made  himself  master  of  the  Confederacy." 
Tlie  Federalist,  No.  18. 

2  The  want  of  a  power  to  regulate  commerce  is  one  of  the  defects 
which  renders  the  existing  Federal  system  unfit  for  the  adminis- 
tration of  the  affairs  of  the  Union.  There  is  no  object  that  more 
strongly  demands  a  Federal  superintendence,  .  .  .  The  interfering 
and  unneighborly  regulations  of  some  States,  contrary  to  the  true 
spirit  of  the  Union,  have,  in  different  instances,  given  just  cause 
of  umbrage  and  complaint  to  others ;  and  it  is  to  be  feared  that 
examples  of  this  nature,  if  not  restrained  by  a  national  control, 
would  be  multijjlied  and  extended  till  they  became  not  less  serious 
sources  of  animosity  and  discord,  than  injurious  impediments  to 
the  intercourse  between  the  different  parts  of  the  Confederacy. 
The  Federalist,  No.  22. 


PRINCIPLES    OF    ITS    CONSTRUCTION.  79 

different  States.^  The  States  being  practically  lecture  ii. 
independent  of  each  other  had  the  power  of  [JI'j'^'^J^JJj^^^^" 
taxing  all  goods  which  passed  through  their 
borders  or  entered  their  ports.  The  little  State 
of  Rhode  Island  had  in  Newport  one  of  the 
most  important  ports  of  entry  upon  the  Atlantic 
coast,  and  by  levying  taxes  on  importations  was 
getting  rich  at  the  expense  of  its  neighbors  in 
the  confederacy  of  States.^  The  port  of  Charles- 
ton bore  the  same  relation  to  the  southern  part 
of  the  country,  and  the  port  of  Norfolk  held  a 
like  position  with  reference  to  Vu^ginia  and 
Maryland.^ 

1  "We  are  uncertain  whether  the  States  generally  will  come 
into  the  proposition  of  investing  Congress  with  the  regulation  of 
their  commerce.  Massachusetts  has  passed  an  act,  the  lirst  object 
of  which  seems  to  be  to  retaliate  on  the  British  commercial 
measures,  but  in  the  close  of  it  they  impose  double  duties  on  all 
goods  imported  in  bottoms  not  owned  wholly  by  citizens  of  our 
States.  New  Hampshire  has  followed  the  example.  This  is  much 
complained  of  here,  and  will  probably  draw  retaliatorj'  measures 
from  the  states  of  Europe,  if  generally  adopted  in  America,  or  not 
corrected  by  the  States  which  have  adopted  it."  Jefferson's 
Works,  vol.  1,  p.  475. 

2  Mr.  Hamilton  said,  February  19,  1783  :  "The  true  objection 
on  the  part  of  Rhode  Island  was  the  interference  with  the  impost, 
with  the  opportunity  afforded  by  their  situation  of  lev'j'ing  contri- 
butions on  Connecticut,  etc.,  which  received  foreign  supjilies  through 
the  ports  of  Rhode  Island :  that  the  true  objection  on  the  part  of 
Virginia  was  her  having  little  share  in  the  debts  due  from  the 
United  States  to  which  the  impost  would  be  applied."  5  Elliot's 
Debates,  52. 

3  "  The  other  source  of  dissatisfaction  was  the  peculiar  situation 
of  some  of  the  States,  which,  having  no  convenient  ports  for  foreign 
commerce,  were  subject  to  be  taxed  bj'  their  neighbors,  through 
whose  ports  their  commerce  was  carried  on.  New  Jersey,  placed 
between  Philadelphia  and  New  York,  was  likened  to  a  cask  tapped 
at  both  ends;  and  North  Carolina,  between  Virginia  and  .South 
Carolina,  to  a  patient  bleeding  at  both  arms.  The  Articles  of 
Confederation  provided  no  remedy  for  the  complaint,  which  pro- 


80  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture:  II.  Eiit  that  was  iiot  all.     The  trade  between  the 

Causes  which  led  g|^r^|^gg  ^yg^g  heavilv  taxed,  in  pursuance  of  a  pol- 

to  Its  adoption.  j  ^  i  x 

icy  by  which  each  endeavored  to  lay  the  burden 
of  raising  its  revenues  upon  the  others.  This 
has  been  one  of  the  most  difficult  things  to  cor- 
rect, and  efforts  in  that  direction  have  been 
made  against  the  attempts  to  accomplish  this 
object,  which  have  been  persistently  pursued  up 
to  the  present  time.^     Many  cases  have   come 

duced  a  strong  protest  on  the  part  of  New  Jersey,  and  never  ceased 
to  be  a  source  of  dissatisfaction  until  the  new  Constitution  super- 
seded the  old."     Madison  in  5  Elliot's  Debates,  112. 

1  Statute  of  New  York  granting  exclusive  navigation  of  waters 
within  the  State.     Gibbons  v.  Ogden,  9  Wheat.  1. 

Statute  of  Maryland  requiring  license  to  sell  imported  goods. 
Broivn  v.  Maryland,  12  Wheat.  419  ;  Ward  v.  Maryland,  12  Wall. 
418. 

Statute  of  Missouri,  requiring  a  like  license.  Welton  v.  Mis- 
souri, 91  U.  S.  275. 

Statute  of  California  imposing  a  tax  upon  bills  of  lading  for 
gold  or  silver  carried  out  of  the  State.  Almy  v.  California,  24  How 
169. 

Statute  of  Alabama  providing  for  the  registration  of  the  names 
of  steamboat  owners,  etc.     Sinnot  v.  Davenport.,  22  How.  227. 

Statutes  of  New  York  and  Massachusetts  imposing  taxes  on 
alien  passengers  arriving  in  ports  of  those  States.  Passenger  Cases, 
7  How.  283  ;    Henderson  v.  Mayor  of  Xew  York,  92  U.  S.  259. 

Statute  of  California  imposing  like  taxes.  Chy  Lung  v.  Free- 
man, 92  U.  S.  275. 

Statute  of  New  York  taxing  banks.  Bank  of  Commerce  v.  Neio 
York  City,  2  Black,  620 ;  Bank  Tax  Case,  2  Wall.  200. 

Statute  of  Nevada  levying  a  capitation  tax  upon  passengers 
caiTied  out  of  the  State.     Crandall  v.  Xevada,  6  Wall.  ?>5. 

Statute  of  Pennsylvania  imposing  tax  upon  articles  brought 
into  or  carried  out  of  the  State.  Case  of  State  Freight  Tax,  15 
Wall.  232  ;  Philadelphia  Steamship  Co.  v.  Pennsylvania,  122  U.  S. 
326. 

Statute  of  Tennessee  imposing  a  license  or  privilege  tax  on 
sleeping-cars.  Pickard  v.  Pnllman  Southern  Car  Co.,  117  U.  S. 
34  ;   Tennessee  v.  Same,  117  U.  S.  51. 

Statute  of  Louisiana  imposing  a  license  tax  on  boats.  Moran 
T.  Mw  Orleans,  112  U.  S.  69. 


PRINCIPLES    OF    ITS    CONSTRUCTION.  81 

before  the  Supreme  Court  of  the  United  States  lecture  ii. 
involving  this  question,  where  State  laws  of  this  to^uTadoptLn.^ 
character  have  been  held  to  be  invalid  because 
in  conflict  with  the  constitutional  power  of  Con- 
gress to  alone'  regulate  commerce  of  that  nature.* 
Notwithstanding  for  nearly  one  hundred  years 
we  have  had  in  the  Federal  Constitution  the 
declaration  that  Congress  shall  have  power  to 
regulate  commerce  among  the  several  States, 
there  are  at  this  hour  upon  the  statute  books  of 
almost  every  State  laws  violating  that  provision  ; 
and  there  is  no  doubt  that  if  that  clause  were 
removed  to-morrow,  this  Union  would  fall  to 
pieces,  simply  by  reason  of  the  struggles  of  each 
State  to  make  the  property  owned  in  other  States 
pay  its  expenses.  It  was  this  tendency  of  each 
State  to  support  its  Government  out  of  taxes 
levied  upon  the  property  of  other  States,  or  on 

Statutes  regulating  delivery  of  telegraphic  despatches  in  other 
States.  Western  Union  Telegraph  Co.  v.  Pendleton,  122  U.  S. 
347  ;   Telegraph  Co.  v.  Texas,  105  U.  S.  460. 

Statute  of  Missouri  prohibiting  bringing  certain  cattle  into  the 
State.    Bailroad  Co.  v.  Husen,  95  U.  S.  465. 

Statute  of  Louisiana  regulating  transportation  of  passengers, 
without  distinction  of  race  or  color.  Hall  v.  De  Cidr,  95  U.  S. 
485. 

Statute  of  Tennessee  taxing  drummers.  Bobbins  v.  Shelby 
County  Taxing  District,  120  U.  S.  489.     [Cases  reviewed.] 

Statute  of  niinois  regulating  rates  of  railroad  transportation. 
Wabash  &  St.  Louis  Railway  Co.  v.  Illinois,  118  U.  S.  557.  [Cases 
reviewed.] 

1  Even  with  this  explicit  declaration  it  was  yet  diflBcult  for  men 
trained,  as  were  the  older  lawyers  during  the  early  part  of  this  cen- 
tury, to  concede  the  supreme  power  of  Parliament  over  and  above 
any  court  in  the  land  ;  —  that  any  law  passed  by  the  legislative  and 
approved  by  the  executive  branches  of  the  government  could  be 
set  aside  upon  the  mere  opinion  or  judgment  of  a  judicial  tribunal. 
For  this  there  was  no  precedent  in  ancient  or  modem  history. 


82  LECTUKES    ON    CONSTITUTIONAL    LAW. 

Lecture  ii.        the   proclucG    or    merchandise   which   must    go 
uTitrLioptiou.^    throLigli  one   State  to  another,  that  more  than 

any  other  one  thing  compelled  the  formation  of 

the  present  Constitution.-^ 
An  understanding      The  importance  of  a  clear  understanding  of 
of  these  causes  a  ^|-^ggg  reasous,  wliich  wcrc  SO  coffcnt  in  its  f or- 

key  to  its  con-  '  ^ 

struction.  matiou,  is  quite  apparent.     A  very  useful  key  to 

the  construction  of  a  statute  or  a  constitution  is 
to  inquire  what  was  the  evil  to  he  removed,  and 
what  remedy  did  the  new  instrument  propose ; 
so  that  when  a,ny  question  arises  requiring  a 
judicial  construction  of  any  of  its  clauses,  it  is 
important  to  go  back  and  ascertain  the  evil  that 
was  intended  to  be  remedied. 

The  Articles  of  Confederation  by  which  the 
Colonies  were  bound  together  were  but  a  rope  of 
sand ;  the  nation  was  such  only  in  name.^  To 
make  it  such  in  reality,  this  was  the  problem 

^  :Mr.  Van  Buren  said,  as  early  as  1826,  in  the  Senate  of  the 
United  States :  "  There  are  few  States  in  the  Union  upon  whose 
acts  the  seal  of  condemnation  has  not  from  time  to  time  been  placed 
by  the  Supreme  Court.  The  sovereign  authorities  of  Vefmont, 
New  Hampshire,  New  York,  New  Jersey,  Pennsylvania,  Maryland, 
Virginia,  North  Carolina,  Missouri,  Kentucky,  and  Ohio,  have  in 
turn  been  rel^uked  and  silenced  by  the  overruling  authority  of  this 
court."     4  Elliot's  Debates,  486. 

2  The  day  is  at  length  arrived  when  dangers  and  distresses  have 
opened  the  eyes  of  the  people,  and  they  perceive  the  want  of  a 
common  head  to  draw  forth  in  some  just  proportion  the  resources 
of  the  several  branches  of  the  Federal  union.  They  perceive  that 
the  deliberative  powers  exercised  by  States  individually  over  the  acts 
of  Congi'ess  must  terminate  in  the  common  ruin  ;  and  the  Legisla- 
tures, however  reluctantly,  must  resign  a  portion  of  their  authority 
or  cease  to  be  Legislatures.  Letter  of  James  Duane  to  Washing- 
ton, January  29,  1781;  see  1  Bancroft's  History  of  the  Constitu- 
tion, 283  (orig.  ed.). 

Hamilton  wrote  :  "  The  Union  has  neither  troops,  nor  treasury, 
nor  government. " 


PRINCIPLES    OF    ITS    CONSTRUCTION.  83 

which  confronted  the  founders  of  tliis  Govern-  lecturk  n. 
ment,  and  they  came  to  their  work  of  framing  of"thele*'rJu"es'a^ 
its  organic  hiw,  with  a  full  view  of  its  impor-  i^'^y  ^"  ii»  con- 
tance  and  the  evils  to  be  remedied.     They  deter- 
mined that  this  instrument  which  they  framed 
should  be  no  such  feeble  tie.     They  were  insti- 
tuting a  government  for  the  common  defence 
and  the  general  welfare,  and  they,  therefore,  no 
longer  spoke    of   the    States    individually,  who 
might  struggle  with  each  other/  but  they  said : 
"We,  the  people  of  the  United  States,  do  ordain 
this  instrument  to  be  our  Constitution."  ^    It  was 
then  that  a  nation  was  born.^ 


1  Tlie  great  and  radical  vice  in  the  construction  of  the  existing 
Confederation  is  in  the  principle  of  legislation  for  States  or 
GOVERNMENTS,  in  their  corporate  or  collective  capacities, 
and  as  contradistinguished  from  the  individuals  of  which  they 
consist.     The  Federalist,  No.  15. 

The  decay  and  failure  of  the  Confederation  is  graphically 
described  in  Curtis'  Constitution. 

2  This  preamble  is  constantly  referred  to  by  statesmen  and 
jurists,  to  aid  in  expounding  its  provisions.  Chisholm  v.  Georgia, 
2  Dall.  474  ;  2  Curtis'  History  of  Constitution,  pp.  372-376. 

It  is  the  essence  and  epitome  of  the  whole  instrument  by  which 
this  government  is  ordained  and  created,  and  its  purposes,  author- 
ity, and  duty  established.    Farrar's  Constitution,  sec.  5. 

The  Constitution  of  the  United  States  was  ordained  and  estab- 
lished, not  by  the  States  in  their  sovereign  capacity,  but  emphat- 
ically, as  the  preamble  of  the  Constitution  declares,  by  "the  people 
of  the  United  States."  Story,  J.,  in  Martin  v.  Hunter'' s  Lessees, 
1  Wheat.  326. 

3  The  new  government  was  not  a  mere  change  in  dynasty,  or  in 
a  form  of  government  leaving  the  nation  or  sovereignty  the  same, 
and  clothed  with  all  the  rights,  and  bound  by  all  the  obligations  of 
the  preceding  one.  But  when  the  present  United  States  came  into 
existence  under  the  new  government,  it  was  a  new  political  body, 
a  new  nation,  then  for  the  first  time  taking  its  place  in  the  family 
of  nations.  Chief  Justice  Taney,  in  Dred  Scott  v.  Sandford,  19 
How.  441. 


84  LECTUEES    ON    CONSTITUTIONAL    LAW. 

Lecture  II.  Of  coursG,  wliGii  the  delegates  from  the  various 

terr''""^*^'  States  all  came  together,  they  must  have  had 
among  them  a  great  deal  of  discussion  about  the 
philosophy  of  government.  Probably  no  nation, 
or  people,  as  young  as  ours  then  was,  ever  had 
so  many  men  thoroughly  versed  in  that  direc- 
tion, or  so  many  who  had  given  vigorous,  edu- 
cated, and  trained  attention  to  that  science,  as 
were  to  be  found  in  this  country  at  that  time.^ 
And,  fortunately,  society  was  then  in  a  condition 
when  personal  aspirations  and  malign  influences 
were  not,  and  probably  could  not  be,  brought  to 
bear,  from  the  fact  that  the  wisest  and  best  men 
were  sent  forward  from  the  various  communities 
to  participate  in  the  work  of  the  constitutional 
convention.  In  that  we  have  reaped  the  benefit 
of  the  good  fortune  of  our  ancestors. 
The  United  States  It  lias  been  common  to  designate  our  form  of 
not  a  deiuocracy.  government  as  a  democracy,  but  i:  the  true 
sense  in  which  that  term  is  properly  used,  as 
defining  a  government  in  which  all  its  acts  are 


*  The  convention  that  formed  the  Constitution  was  composed  of 
fifty -five  members.  It  was  a  body  of  great  and  disinterested  men, 
competent,  both  morally  and  intellectually,  to  the  work  assigned  to 
them.  .  .  .  There  was  certainly  a  remarkable  amount  of  talent 
and  intellectual  power  in  that  bod^_  There  were  men  in  that 
assembly,  who,  for  genius,  for  statesnjanship,  and  for  profound 
speculation  in  all  that  relates  to  the  science  of  government,  the 
world  has  never  seen  overmatched,  and  they  were,  happily,  the 
most  marked  in  that  assembly  for  their  comprehensive  patriotism, 
their    justice,   their  unselfishness   and    magnanimity. 

Mr.  Choate  said  in  1858  in  a  lecture  on  Jefferson,  IJurr,  and 
Madison:  "I  dwell  on  that  time  from  1780  to  1789  because  that 
was  our  age  of  civil  greatness.  Then  first  we  grew  to  be  one.  In 
that  time  our  nation  was  born." 


PEINCIPLES    OF    ITS    CONSTRUCTION".  85 

performed  by  the  people,  it  is  about  as  far  from  lecture  ii. 

.,  i  1  i"       1   •    1  A        1  The  United  St.itfs 

it  as  any  other  oi  which  we  are  aware.  As  has  ^^^  ^  democracy, 
already  been  said,  a  pure  democracy  is  almost 
unknown,  from  the  difficulty  of  having  all  the 
people  participate  in  the  functions  of  govern- 
ment, which  include  not  only  the  processes  of 
making  the  laws,  but  also  the  administration  of 
them.  Such  was  that  of  Athens,^  the  only 
highly  civilized  form  of  democracy  that  ever 
existed,  where  people  from  the  streets,  who 
could  gather  in  the  public  places  of  that  city, 
met  and  decided  lawsuits,  questions  of  the  right 
of  property,  of  the  life  or  death  of  individuals, 
of  the  election,  punishment,  or  censure  of  their 
officers,  of  the  proprietorship  of  land,  or  of  mak- 
ing war  or  preserving  peace.  This  may  have 
seemed  well  in  theory,  but  history  shows  that  it 
resulted  in  a  scene  of  perpetual  turmoil.  There 
was  little  security  to  life  or  liberty  when  the 
best  men  in  the  community  were  compelled  to 
drink  the  deadly  hemlock,  or  were  banished 
from  their  homes.  Their  intellect  was  stimu- 
lated, and  they  prized  human  effort  directed  in 
the  channels  of  imagination,  of  science,  and  of 
literature,  but  it  was  still  far  from  being  a 
place  where  personal  rights  were  respected,  or 


^  In  the  Athenian  republic,  the  most  democratic  of  the  Greek 
states,  when  the  population  and  suffrage  were  most  extended,  317 
B.C.,  but  21,000  were  entitled  to  vote  out  of  more  than  500,000.  .  .  . 
Real  democracy  was  first  put  in  practice  by  the  New  England  Col- 
onies, and  to  this  day  the  most  perfect  examples  are  the  New 
Engla  ^d  towns,  where  the  whole  adult  male  population  assemble 
togetti«i  c..^  decide  by  their  votes  their  own  public  affairs.  Am- 
erican Cyclopsediit,  tit.  Democracy. 


86  LECTUEES    ON    CONSTITUTIONAL    LAW. 

Lecture  II.        wliere  any  man   of  modern  times  would  have 
^  The  United  states  ^^^^^  williniT  to  make  his  home. 

not  a  democracy.  ~ 

But  our  forefathers  did  not  adopt  any  of  the 
forms  referred  to.  They  had  suffered  from  the 
evils  of  a  monarchical  as  well  as  an  aristocratical 
system ;  for  England  was,  a  century  ago,  more 
of  an  aristocracy  than  anything  else.  A  pure 
democracy  was  neither  possible  nor  desirable ; 
but  still  they  determined  that  the  people  should 
be  felt  in  the  direction  of  public  affairs,  and  so 
they  constructed  what  may  be  called  a  com- 
posite government,  a  representative  republican 
government,  one  in  which  the  powers  that  be- 
long to  all  sovereignties  were  divided  and  placed 
in  different  depositories. 
Division  of  The  proper  division  of  these  powers  is  of  the 

powers.  greatest  importance,  and  they  were  wisely  dis- 

tributed by  the  framers  of  the  Constitution 
among  the  three  branches  which  have  come  to 
be  recognized  in  all  good  governments  as  essen- 
tial to  a  proper  balance  of  their  functions, —  the 
executive,  the  legislative,  and  the  judicial.  The 
'  legislative  branch  enacts  the  law,  the  executive 
enforces  it,  and  the  judicial  interprets  its  pro- 
visions, both  as  regards  public  and  private  rights, 
as  between  the  citizens  themselves  and  as  between 
them  and  the  Government  of  the  United  States. 
This,  then,  is  the  Constitution  of  the  United 
States.  It  establishes  these  powers,  defines  and 
limits  them.  It  distributes  them  among  these 
three  departments,  and  then  confines  them  to 
their  proper  scope  and  field  of  action,  in  order 
that  there  may  be  a  useful  and  safe  administra- 


PKINCIPLES    OF    ITS    CONSTRUCTION.  87 

tion  for  the  benefit  of  all  the  people,  for  whom  lectuhe  ii. 
all  ffovernments  are  instituted.  Division  of 

'^  ^  powers. 

You  will  observe,  however,  that  the  lines  that 
mark  that  division  are  not  perfect.  Perhaps  it 
is  impossible  that  they  should  be ;  it  may  be 
desirable  that  they  should  be  more  perfect  than 
they  are.  As  regards  the  executive,  for  instance, 
the  powers  which  properly  belong  to  that  branch 
of  the  government  are  not  completely  vested  in 
the  President,  for  we  find  that  the  Senate  is 
required  to  give  its  assent  to  all  treaties  made 
by  the  President  before  they  can  be  operative. 
The  Senate  is  also  required  to  confirm  all  nom- 
inations to  the  higher  offices  before  they  become 
valid  appointments.^  So  that  these  two  great 
duties,  of  making  appointments  to  office  and 
making  treaties,  which  are  usually  classed  as 
executive  functions  of  the  Government,  are  to 
some  extent  divided  in  their  exercise,  as  w^ell  as 
in  the  forms  necessary  to  give  them  efficacy, 
between  the  President,  who  is  the  Executive,  and 
the  Senate  of  the  United  States,  which  is  one  of 
the  branches  of  the  legislative  department.* 

So,  also,  in  regard  to  declaring  war  and  mak- 
ing peace,  which  in  most  other  countries  are 
held  to  be  exclusively  executive  functions,  and 
which  even  under  the  popular  government  of 
Great  Britain  remains  in  the  Crown  alone,  they 
are,  under  our  system,  participated  in  by  both 
the   executive    and   legislative    branches.^     The 

1  Constitution,  Art.  2,  sec.  2,  par.  2. 

2  The  gi-eat  disadvantage  of  the  Swiss  Confederation  was  in  the 
power  which  the  cantons  formerly  had  of  levying  war  against  each 


88 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  II. 
Division  of 
powers. 


Constitution  says  that  Congress  shall  have  power 
to  declare  war  ;  ^  the  President  takes  part  in  that 
matter  only  as  he  is  a  part  of  the  latter.  The 
laws  are  required  to  be  signed  by  him,  and  it  is, 
therefore,  evident  that  the  legislative  branch  is 
not  entirely  separate  from  the  executive,  but 
that  it  thus  becomes  an  integral  part  of  that 
department  of  the  Government.  If,  on  the 
contrary,  he  does  not  see  fit  to  sign  the  bills 
which  have  been  passed  by  the  Congress,  he 
usually  sends  them  back  to  the  body  in  which 
they  originated  with  his  reasons  and  objections 
thereto.  It  then  requires  a  two-thirds  vote  of 
both  branches  of  the  Legislature  to  enact  them 
into  laws  over  such  veto.^  It  is,  therefore,  ap- 
parent that  the  power  of  legislation  is  not  con- 
fided wholly  to  the  legislative  branch  of  the 
government 

Perhaps  the  judicial  power  is  left  more  nearly 
intact  in  the  hands  of  the  judiciary  than  any  of 
the  others,  but  it  is  not  wholly  so.  The  power 
of  framing  impeachments  and  trying  them,  which 
is  eminently  a  judicial  function,  as  much  so  as 
it  is  to  indict  a  man  and  try  him  for  murder, 
belongs  wholly  and  exclusively  to  the  two 
branches  of  the  legislative   department.      The 

other,  and  of  resisting  the  Central  Government  in  its  method  of 
conducting  the  foreign  policy  of  the  country.  This  was,  however, 
remedied  in  the  present  constitution,  which  gives  the  control  of 
the  army,  foreign  affairs,  and  settlements  between  cantons,  and 
the  management  of  the  police  and  post-offices,  to  the  Federal 
Assembly.  This  body  represents  all  the  cantons,  and  consists  of 
two  chambers. 

1  Constitution,  Art.  1,  sec.  8,  par.  11. 

2  Constitution,  Art.  1,  sec.  7,  par.  2. 


PKINCIPLES    OF   ITS    CONSTKUCTIOIS".  89 

House  of  Representatives  formulates  the  charges  lecture  ii. 
or  indictment,  and  the  Senate  tries  and  deter-  ^^^^^'"°  °^ 

^  powers. 

mines  them.^ 

But,  after  all,  those  are  only  exceptions,  and 
it  remains  true  that,  for  general  and  most  useful 
purposes,  the  best  feature  of  our  Constitution  is 
that  it  does  make  this  substantial  separation  of 
power  among  these  three  departments. 

These  departments,  under  our  form  of  govern- 
ment, are  co-ordinate  in  dignity.  Neither  of 
them  is  intended,  by  the  theory  of  our  Consti- 
tution, to  be  subjected  to  the  other.  The  Presi- 
dent cannot  be  compelled  to  make  a  treaty,  or 
to  appoint  anybody  to  office  that  he  does  not 
wish  to.  The  Legislature  cannot  be  compelled 
to  pass  any  laws,  and  it  alone  can  exercise  that 
function.  The  judiciary  alone  can  construe 
them,  when  enacted,  and  enforce  them  by  proper 
judgments  of  the  various  courts.  Mr.  Justice 
Wayne  has  advanced  this  idea  in  very  appro- 
priate terms  .^  "  The  departments  of  the  Gov- 
ernment are  legislative,  executive,  and  judicial. 
They  are  co-ordinate  in  degree  to  the  extent  of 
the  powers  delegated  to  each  of  them.  Each  in 
the  exercise  of  its  power  is  independent  of  the 
other,  but  all  rightfully  done  by  either  is  bind- 
ing upon  the  others.  The  Constitution  is  su- 
preme over  all  of  them,  because  the  people  who 
ratified  it  have  made  it  so."  ^ 

1  Constitution,  Art.  1,  sec.  2,  par.  5  ;  Art.  1,  sec.  3,  par.  6. 

2  Dodge  v.  Woolsey,  18  How.  331,  347. 

8  Whenever  the  poHtical  laws  of  the  United  States  are  to  be  dis- 
cussed, it  is  with  the  doctrine  of  the  sovereignty  of  tlie  jieoiile  tliat 
we  must  begin.  De  Tocqueville,  Democracy  in  America,  vol.  1, 
p.  36  (ed.  N.  Y.  1838). 


90  LECTUKES    ON    CONSTITUTIONAL    LAW. 

Lecture  II.  WliGH  tlie  Constitution  was  first  framed,  it 

cStuUon  wtn  was  received  by  a  great  many  thinking  people 
promulgated.  with  much  distrust.  An  examination  of  the 
history  of  the  proceedings  of  the  conventions  of 
the  States,  which  were  called  to  ratify  and  con-' 
firm  that  instrument,  and  without  which  it 
would  have  had  no  efficacy,  will  show  that  it 
was  fiercely  assailed,  and  that  in  the  debates  in 
regard  to  its  adoption  in  several  of  the  States 
the  issue  was  for  a  long  time  doubtful.-^  It  is 
well,  perhaps,  to  consider  some  of  the  objections 
to  it  in  the  light  of  a  century's  experience.^ 

One  of  the  greatest  was  that  it  conferred  too 
much  power  upon  the  Central  or  Federal  Gov- 
ernment, and  that  it  curtailed  too  largely  the 
powers  of  the  States.  It  will  be  remembered 
that  the  Colonies  had  just  been  emancipated 
from  the  parent  government.  They  had  worked 
together  but  a  short  time,  and  that   not  very 


1  Washington  wrote  to  Patrick  Henry,  September  24,  1787 : 
"I  wish  the  Constitution  whicli  is  offered  had  been  more  perfect ; 
but  it  is  the  best  tliat  could  be  obtained  at  this  time,  and  a  door  is 
opened  for  amendments  hereafter.  The  political  concerns  of  this 
country  are  suspended  by  a  thread.  The  convention  has  been 
looked  up  to  by  the  reflecting  part  of  the  community  with  a  solici- 
tude which  is  hardly  to  be  conceived  ;  and  if  nothing  had  been 
agreed  on  by  that  body,  anarchy  would  soon  have  ensued,  the 
seeds  being  deeply  sown  in  every  soil."  Bancroft's  History  of 
the  Constitution,  vol.  2,  p.  231, 

2  Eichard  Henry  Lee  published  a  series  of  papers  called  ' '  Letters 
from  the  Federal  Farmer,"  in  which  the  chief  objections  to  the  new 
constitution  were  stated :  that  it  created  a  national  legislature 
where  the  votes  were  to  be,  not  by  States,  but  by  individuals,  whose 
salaries  were  to  be  paid  out  of  the  general  treasury,  thus  making 
them  independent  of  their  own  States,  and  that  they  had  an  un- 
limited power  of  taxation  ;  that  too  much  power  was  given  to  the 
Federal  judiciary  ;  that  an  oath  of  allegiance  was  required  to  the 
Federal  Government,  and  that  no  Bill  of  Eights  was  included  in  it. 


PRINCIPLES    OF    ITS    CONSTRUCTION.  91 

harmoniously.      Each    man    felt    that   his   own  lecture  ii. 
State  was  more  to  him,  and  that  he  had  a  larger  constuutionwhen 
interest  in  it  than  he  had  in  the  welfare  of  all  proiuuigated. 
the  others,  and  it  is  one  of  the  most  creditable 
as  well  as  remarkable  things  that  the  superior 
discernment  and  influence  of  a  few  great  minds 
could  overcome  these  strong  prejudices,  and  so 
crystallize   the  wise   provisions   of   the    Consti- 
tution into  a  new  form  of  government,  w^hich 
has  proved  so  harmonious  in  its  action  and  per- 
manent in  its  character.     Several  of  the  States 
expressed    their    dissatisfaction    by    proposing 
amendments,  under  the  provision  in  the  instru-  The  ameudments. 
ment  therefor,  and  within  two  years  after  it  was 
ratified,^  Congress   passed    and  referred  to  the 
different    States    twelve    amendments,^    ten   of 


^  The  Constitution  went  into  operation  Marcli  4,  1789.  Owings 
V.  Spe>'d,  5  Wlieat.  420. 

2  Tlie  first  and  second  articles,  of  the  twelve  proposed  and 
passed,  were  never  ratified.  The  first  is  interesting  in  view  of  the 
recent  strictures,  in  the  press  and  elsewhere,  upon  the  unwieldy 
character  of  the  present  House  of  Representatives,  which  now  con- 
sists of  325  members  and  8  delegates.  [Since  this  note  was  writ- 
ten the  number  has  been  increased  to  35G.]  The  miratified  articles 
are  as  follows : 

1.  After  the  first  enumeration  required  by  the  first  article  of 
the  Constitution,  there  shall  be  one  representative  for  every  20,000 
until  the  number  shall  amount  to  100,  after  which  the  proportion 
shall  be  so  regulated  by  Congress  that  there  shall  not  be  less  than 
100  representatives,  nor  less  than  one  representative  for  every 
40,000  persons,  until  the  number  shall  amount  to  200  ;  after  which 
the  proportion  shall  be  so  regulated  by  Congress  that  there  shall 
not  be  less  than  200  representatives,  nor  more  than  one  represent- 
ative for  every  .50,000  persons. 

2.  No  law  varying  the  compensation  for  the  services  of  senators 
and  representatives  shall  take  effect  until  an  election  of  represent- 
atives shall  have  intervened.  See  Appendix  to  Annals  of  1st 
Congress,  vol.  2,  pp.  1984-5  ;  also  Mickey's  Constitution,  p.  35,  note. 


92  LECTUKES    ON    CONSTITUTIONAL   LAW. 

Lecture  II.        wliich  were  ratified  finally  by  the  requisite  num- 

The  amendments,  i  ,  i        j.i  j.       r    xi         r-i         ±'±    j.* 

ber  to  make  them  a  part  or  the  Constitution. 
These  were  soon  followed  by  two  others,  the 
eleventh  and  twelfth,  after  the  ratification  of 
which  it  remained  unchanged  for  a  period  of 
more  than  sixty  years. ^ 
The  objections  to  In  tliose  amendments,  if  they  are  carefully 
the  Constitution,  -^xamincd,  may  be  plainly  seen  this  distrust  of 
the  power  of  the  Central  Government,^  and  this 

1  At  the  first  Congress  after  the  organization  of  the  Government, 
the  House  proposed  seventeen  amendments  to  the  Constitution. 
These  were  by  the  Senate  reduced  to  twelve,  and  they  were  then 
submitted  to  the  States. 

At  various  times  between  November,  1789,  and  March,  1790,  ten 
of  these  amendments  were  ratified  by  the  Legislatures  of  the  follow- 
ing States :  New  Jersey,  North  Carolina,  Maryland,  New  Hamp- 
shire, Delaware,  South  Carolina,  New  York,  and  Pennsylvania; 
one  less  than  three-fourths  of  the  twelve  States  then  in  the  Union. 
Annals  of  1st  Congress,  vol.  2,  Appendix.  In  May,  1790,  Khode 
Island  came  into  the  Union,  and  in  June  her  Legislature  ratified, 
but  as  there  were  now  thirteen  States,  three-fourths  had  not  yet 
given  their  assent.  Subsequently  Vermont  was  admitted,  and  in 
November,  1791,  ratified  the  amendments  ;  but  there  were  now 
fourteen  States,  and  the  requisite  number  had  not  been  obtained. 
But  in  December  of  the  same  year,  Virginia,  one  of  the  original 
twelve,  gave  in  her  adhesion,  and  thus  the  ten  amendments  became 
a  part  of  the  Constitution.  Annals  2d  Congress,  pp.  54,  75.  These 
were  the  first  ten  amendments  now  in  the  Constitution,  and  were 
declared  in  force  December  15,  1791. 

The  eleventh  was  proposed  by  Congress,  March  5,  1794,  and 
declared  in  force  January  8,  1798  ;  the  twelfth,  proposed  December 
12,  1803,  and  proclaimed  September  25,  1804  ;  the  thirteenth,  pro- 
posed February  1,  1865,  and  proclaimed  December  18,  1865;  the 
fourteenth,  proposed  June  16,  186(5,  proclaimed  July  20,  1868  ;  and 
the  fifteenth,  proposed  February  26,  1869,  and  proclaimed  March 
30,  1870. 

It  was  mainly  through  the  efforts  of  Mr.  Madison,  who  pro- 
posed and  advocated  them,  that  the  first  ten  amendments  were 
passed  through  Congi-ess.  2  Story  on  the  Constitution,  sec.  303, 
note. 

2  As  showing  the  diversity  of  opinion  existing  at  the  time  the 
Constitution  was  finally  ratified,  it  may  be  worthy  of  note  that  two 


PRINCIPLES    OF    ITS    CONSTRUCTION.  93 

desire  to  protect  the  States  from  being  over-  lecture  ii. 
whelmed  and  annihilated  by  its  exercise.  The  ^'ctSuToa*: 
contest  has  continued  to  the  present  time.  It 
would  be  well  for  the  country  if  it  could  be  said 
that  it  had  been  settled  by  the  results  of  the 
recent  war,  but  while  it  has  undergone  consider- 
able discussion,  it  has  not  been  finally  deter- 
mined. It  is  sufficient  to  say  here,  although 
others  may  disagree  with  this  conclusion,  that 
the  experience  of  a  century  under  the  Govern- 
ment as  it  was  then  organized  has  sho^vn  that 
the  danger  to  its  perpetuity  and  to  the  people  of 
this  country  did  not  lie  in  the  aggrandizement 
of  th>'5  central  authority,  but  rather  in  the  power 
that  remained  in  the  several  States, 

Another  objection,  second   in   importance  in  The  executiTe. 

hundred  and  one  amendments  were  proposed  in  one  form  or  an- 
other by  the  different  States  in  the  course  of  their  action  upon  its 
ratification.  Of  course  many  of  them  referred  to  substantially  the 
same  matter  of  grievance. 

"  It  is  universally  understood,  it  is  a  part  of  the  history  of  the 
day,  that  the  great  revolution  which  established  the  Constitution 
of  the  United  States  was  not  effected  without  immense  opposition. 
Serious  fears  were  extensively  entertained  that  those  powers  which 
the  patriot  statesmen,  who  then  watched  over  the  interests  of  our 
country,  deemed  essential  to  "union,  and  to  the  attainment  of  those 
invaluable  objects  for  which  union  was  sought,  might  be  exercised 
in  a  manner  dangerous  to  liberty.  In  almost  every  convention  by 
which  the  Constitution  was  adopted,  amendments  to  guard  against 
the  abuse  of  power  were  recommended.  These  amendments  de- 
manded security  against  the  apprehended  encroachments  of  the 
General  Government  —  not  against  those  of  the  local  governments. 
In  compliance  with  a  sentiment  thus  generally  expressed,  to  quiet 
fears  thus  extensively  entertained,  amendments  were  proposed  by 
the  required  majority  in  Congress,  and  adopted  by  the  States. 
These  amendments  contain  no  expression  indicating  an  intention 
to  apply  them  to  the  State  governments.  This  court  cannot  so 
apply  them."  Chief  Justice  Marshall  in  Barron  v.  Mayor  and 
Council  of  Baltimore.,  7  Pet,  243,  250. 


J]4  LECTUEES    ON    CONSTITUTIONAL    LAW. 

Lecture  II.  tliG  minds  of  thosG  who  were  not  faA^orable  to 
e  execu  ive.  ^j^^  Constitution  as  it  was  submitted  for  ratifi- 
cation, was  that  too  much  power  was  lodged  in 
the  executive  office.^  It  was  said  to  be  incon- 
sistent with  the  genius  of  the  Government  which 
they  were  estabUshing,  that  any  one  man  should 
exercise  the  extraordinary  authority  which  that 
instrument  vested  in  the  President  of  the  United 
States  ;  that  the  appointment  of  all  the  officers 
of  the  Federal  Government,  the  distribution  of 
all  its  patronage,  and  the  control  of  its  army  and 
navy,  would,  in  process  of  time,  enable  some 
man  to  build  up  a  power  that  could  not  be  re- 
sisted. It  was  argued  that  some  one  would  arise 
who,  by  that  power  and  with  that  inclination, 
would  destroy  the  really  democratic  features  of 
our  government,  and  finally  establish  a  mon- 
,  archy  in  its  place. 

This  belief,  though  natural  enough  at  that 
time,  was  a  very  great  mistake.  The  nearer  we 
approach  to  individual  responsibility  in  the  ex- 
ecutive, the  nearer  will  it  come  to  perfection. 
It  is  my  deliberate  opinion  that,  of  all  the  three 
branches  which  have  been  discussed,  the  execu- 


1  "It  will  always  be  far  more  easy  for  the  State  governments 
to  encroach  upon  the  national  authorities,  than  for  the  National 
Government  to  encroach  upon  the  State  authorities.  The  proof  of 
this  proposition  turns  upon  the  greater  degree  of  influence  which 
the  State  governments,  if  they  administer  their  affairs  with  up- 
rightness and  prudence,  will  generally  possess  over  the  people  ;  a 
circumstance  which  at  the  same  time  teaches  us,  that  there  is  an 
inherent  and  intrinsic  weakness  in  all  Federal  constitutions,  and 
that  too  much  pains  cannot  be  taken  in  their  organization,  to  give 
them  all  the  force  which  is  compatible  with  the  principles  of  liberty." 
The  Federalist,  No.  17. 


PRINCIPLES    OF    ITS    CONSTRUCTION.  95 

tive  has  been  in  time,  under  the  construction  LErrrRK  n. 
given  to  the  Federal  Constitution  and  its  prac-  ^  ^^^'^^^  '^'^' 
tical  administration,  most  shorn  of  the  puwers 
granted  to  it  thereby.  The  President  of  the 
United  States  for  the  first  forty  or  fifty  years 
did  practically  nominate  all  public  officers  ;  he 
selected  his  cabinet  himself,  and  personally 
made  other  appointments,  although  possibly  a 
few  private  friends,  and  occasionally  a  member 
of  Congress  or  two,  may  have  made  suggestions. 
But  within  the  memory  of  many  men  now  living 
the  time  arrived  when  the  President  (as  the 
gentleman  who  travelled  around  the  world  with 
General  Grant  reports  him  as  saying)  only  reg- 
istered the  edicts  of  members  of  Congress  in 
making  appointments  to  office ;  that  is  to  say, 
in  the  function  about  Avhicli  the  Executive  is 
mainly  employed,  he  has  become  subservient  to 
the  legislative  branch  of  the  Government.  This 
objection,  therefore,  has  proved  to  be  without 
foundation,  and  is  not  now  seriously  considered 
by  thoughtful  men.  Of  all  the  delusive  ideas, 
or  fallacies,  that  ever  entered  anybody's  brain, 
the  most  unfounded  is  this  —  that  any  President 
can  ever  make  himself  a  perpetual  dictator, 
either  in  our  time  and  generation  or  in  those 
which  are  to  come. 

But  the  branch  of  the  Government  which  has  The  Congress, 
grown  the   most,  and  which  a  sagacious  man 
might  perhaps  have  foreseen  would  so  expand,  is 
the  legislative.^    Coming  more  immediately,  as  it 

1  It  is  without  doubt  absolutely  necessary  for  secui'ing  the  con- 
stitution of  a  State  to  restrain  the  executive  power ;  but  it  is  still 


96 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  II. 
The  Congress. 


Weakness  of  the 
judicial  branch. 


does,  from  tlie  people,  at  least  one  branch  of  it, 
and  representing  a  constituency  who  look  to 
it  as  representing  them  in  all  their  legislation, 
much  is  tolerated  in  it  which  would  not  be  toler- 
ated in  the  executive  or  judicial  departments; 
because  the  people  reason  that  if  their  repre- 
sentatives do  badly  during  their  present  terms 
they  may  be  turned  out  at  the  next  election, 
and  they  are  not,  therefore,  afraid  that  they  will 
very  greatly  exceed  their  powers. 

The  judicial  branch  is  the  weakest  of  all.^  It 
has  no  army.  It  has  no  navy,  and  it  has  no 
purse.  It  has  no  officers,  except  its  marshals, 
and  they  are  appointed  by  the  President  and 
confirmed  by  the  Senate.  They  are  the  officials 
to  whom  its  processes  are  sent,  but  they  may  be 
removed  at  any  time  by  the  Executive.  The 
clerks  whom  the  judges  are  permitted  in  some 
form  or  another  to  appoint,  have  salaries  and 
compensations  regulated  by  the  legislature  ;  and 
a  clerk  who  may  receive  $20,000  or  more  in 
fees  must  pay  all  but  $3500  of  such  receipts 
into  the  Treasury  of  the  United  States.^  It  is 
then,  so  far  as  the  ordinary  forms  of  power  are 


more  necessary  to  restrain  the  legislative.     De  Lolme,  Constitu- 
tion of  England,  London,  1834,  p.  190. 

Montesquieu  said  that  the  English  constitution  would  perish 
■when  the  legislative  power  becomes  more  corrupt  than  the  execu- 
tive. 

1  Montesquieu  says  :  "  The  judiciary  is  the  weakest  of  the  three 
departments  of  the  government." 

2  No  clerk  of  a  district  or  circuit  court  shall  be  allowed  to  retain 
fees,  over  and  above  necessary  office  expenses,  in  excess  of  $3500 
per  annum,  [Rev.  Stat.  sec.  839,]  except  in  California,  Oregon, 
and  Nevada,  $7000  [sec.  840 J. 


PKINCIPLES    OF    ITS    CONSTRUCTION.  97 

concerned,  by  far  the  feeblest  branch  or  depart-  i-ecture  ii. 
ment  of  the  Government.  It  must  rely  upon  the  judLaiTrancU.^ 
confidence  and  respect  of  the  public  for  its  just 
weight  and  influence,  and  it  may  confidently  be 
asserted  that  neither  the  country,  the  people,  nor 
the  other  branches  of  the  government,  have  ever 
been  found  wanting  in  that  respect  or  confidence. 
It  is  one  of  the  best  tributes  which  can  be  paid 
to  the  American  nation,  a  tribute  which  it  de- 
serves above  all  others  even  of  Anglo-Saxon 
descent,  and  one  which  can  be  paid  to  no  other 
race,  that  it  always  submits  to  the  law  as  ex- 
pounded by  its  judiciary.  Under  all  the  excite- 
ments of  bitter  contests,  involving  great  financial 
interests,  power,  position,  and  even  political 
existence,  in  fact  everything  which  could  be 
properly  brought  within  its  judicial  cognizance, 
the  people  have  always  felt  that  their  interests 
were  safely  intrusted  to  its  charge.  There  has 
never  been  a  grander  phenomenon  witnessed  in 
the  history  of  any  country  than  that  which  oc- 
curred some  years  since  in  the  State  of  Maine, 
when  a  body  calling  itself  a  legal  legislature, 
and  claiming  to  be  an  authorized  government, 
quietly  laid  down  its  functions  and  dispersed  at 
the  mere  opinion  of  a  court  that  it  had  no  right- 
ful existence.^ 

iln  1879  there  arose  a  controversy  between  the  Fusionists  and 
the  Republicans  in  the  State  of  Maine,  which  was  hotly  contested, 
and  the  feeling  became  exceedingly  intense  and  bitter  on  both 
sides.  The  decision  of  the  Supreme  Court  of  the  State  of  Maine,  by 
which  the  organization  of  the  Legislature  by  the  Republicans  was 
sustained,  was  rendered  on  the  16th  of  January,  1879.  See  full 
history  of  the  origin  and  conclusion  of  the  difficulty  in  Appleton's 
Annual  Cyclopaedia,  1879-80. 


08 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  II. 
Difficulties  of 
interpretation. 


Executive  con- 
struction some- 
times necessary. 


Of  course  there  are  nice  questions  constantly 
arising  between  these  various  departments  of 
the  Government  as  to  the  strict  lines  of  demar- 
cation which  separate  one  from  the  other,  and 
they  are  frequently  of  great  importance.  The 
fundamental  principles  by  which  the  various 
powers  of  the  Government  are  distributed  among 
them  are  laid  down  in  the  Constitution,  which 
it  is  the  duty  of  the  courts  to  construe,^  when- 
ever it  shall  come  before  them  in  a  fair  judicial 
proceeding,  and  they  can  construe  it  in  no  other 
way.  It  is  a  mistake  to  suppose  that  the  special 
function  for  which  the  Supreme  Court  of  the 
United  States  was  created  was  to  interpret  and 
construe  that  instrument.  It  is,  certainly,  tjie 
special  function  of  the  courts  to  construe  it  in  a 
judicial  proceeding,  with  parties  properly  before 
them  ;  but  it  is  equally  the  duty  of  each  member 
of  Congress,  as  well  as  of  the  Executive,  to  make 
that  construction  for  himself  when  he  is  called 
upon  to  act,  within  the  sphere  of  his  duty,  upon 
any  matter  involving  a  question  of  constitutional 
law.  It  is  also  true  that  such  member  or  Ex- 
ecutive is  bound  to  consider  that  in  the  execu- 


1  It  has  been  often  decided  that  the  Supreme  Court  is  the  final 
arbiter  of  the  meaning  of  the  Constitution.  This  question  has  been 
very  fully  examined  in  the  cases  of  Vanhorne'^s  Lessee  v.  Dorrance, 
2  Dall.  304  ;  Martin  v.  Hunter's  Lessee,  1  Wheat.  304  ;  Cohens  v. 
Virginia,  6  Wheat.  204  ;  Ableman  v.  Booth,  21  How.  506. 

Story,  in  his  treatise  on  the  Constitution,  after  discussing  the 
question  of  who  is  final  judge  or  interpreter  in  constitutional  con- 
troversies, says  that  the  appropriate  cimclusion  is  that  the  judicial 
department  of  the  United  States  is,  in  the  last  resort,  the  final 
expositor  of  the  Constitution,  as  to  all  questions  of  a  judicial 
nature. 


PRINCIPLES    OF    ITS    CONSTRUCTION.  99 

tion  of  the  law,  as  between  such  parties,  all  other  lecture  il 
branches  of  the  Government  must  yield  to  the  smictkirsomJ- 
interpretation  declared  by  the  courts ;  yet,  when  times  necessary, 
the  question  is  addressed  to  his  conscience  as  to 
whether  he  can  vote  for  a  proposed  measure,  or 
sign  a  certain  bill  which  is  presented  to  him,  it 
is  for  him  to  decide,  with  the  best  light  that  he 
can  obtain,  whether  the  matter  is  within  the  con- 
stitutional power  of  the  body  of  which  he  is  a 
member. 

It  wijl  thus  be  seen  how  difficult  it  is  to  get  a 
settled  construction  of  this  great  instrument ; 
and,  since  every  branch  of  the  Government,  when 
called  u23on  to  act  originally,  is  bound  to  act  on 
the  judgment  which  it  forms  of  its  own  powers, 
it  is  not  hard  to  understand  the  reason  why  the 
exact  relations  of  the  States  to  the  Federal  Gov- 
ernment should  still,  in  many  instances,  remain 
an  open  and  undecided  question.  We  are,  how- judicial  interpre- 
ever   getting  a   body  of   decisions  which   have '^'';°  ^^;,""^^ '^^ 

o  o  J  sustained. 

become  recognized  principles.  These  interpre- 
tations of  our  organic  law  have  been  more  often 
made  by  the  judicial  branch  than  by  all  the 
others,  although  largely  by  them  as  well,  and 
have  been  very  clearly  brought  out  in  the  light 
of  the  events  which  have  arisen  to  test  it.  For 
example,  many  points,  in  regard  to  which  a  con- 
struction was  put  upon  it  during  the  late  insur- 
rection, as  to  the  powers  that  could  be  exercised 
in  such  an  emergency  by  the  President,  by  the 
War  Department,  by  the  Legislature,  or  by  the 
Judiciary,  all  underwent  a  severe  and  thorough 
investigation,  and   such   construction  was  thus 


100 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lkcture  II. 
Judicial  interpre- 
tation should  be 
sustaiued. 


Principles  of  in- 
terpretation. 


practically  tested.  No  man  can  say  that  all  of 
the  many  decisions  have  been  correct ;  but  yet  it 
must,  in  the  light  of  any  impartial  mind,  be 
clear  that  we  are  completing  a  construction  of 
our  Constitution,  and  are  deciding  a  great  many 
things  with  regard  to  it  which  will  remain 
forever. 

It  is  very  desirable  that  this  should  be  so. 
All  loose  methods  of  construing  authority  are 
dangerous,  as  well  as  all  such  as  are  too  limited 
to  serve  the  purposes  for  which  they  were  in- 
tended. The  Constitution  must  be  looked  at  in 
the  light  of  the  ends  it  was  designed  to  accom- 
plish, having  in  view  the  evils  it  was  intended 
to  remedy  and  the  benefits  it  was  to  exert.  We 
must  examine  it  in  the  light  of  the  fact  that  we 
were  a  dissolving  people,  which  it  was  designed 
anew  to  bind  together  in  a  relation  which  should 
continue  forever ;  that  the  Confederation  was 
rapidly  falling  to  pieces  for  want  of  power  to  pro- 
tect itself  ^^  and  that  one  of  the  main  purposes  of 

^  Upon  the  report,  February  21,  1787,  by  a  majority  of  one,  that 
the  Confederation  needed  amendments,  and  the  proposed  convention 
was  the  most  eligible  means  of  effecting  them,  many  members  of 
the  Congress  considered  it  a  deadly  blow  to  the  existing  Confeder- 
ation, others  as  a  harbinger  of  a  better  one.  All  agreed  and  owned 
that  the  Federal  Government,  in  its  existing  shape,  was  inefficient, 
and  could  not  last  long.     5  Elliot's  Debates,  96. 

' '  The  adoption  of  the  first  eleven  amendments  to  the  Constitu- 
tion, so  soon  after  the  original  instrument  was  accepted,  shows  a 
prevailing  sense  of  danger  at  that  time  from  the  Federal  power. 
Aiid  it  cannot  be  denied  that  such  a  jealousy  continued  to  exist 
with  many  patriotic  men  until  the  breaking  out  of  the  late  Civil 
War.  It  was  then  discovered  that  the  true  danger  to  the  perpetuity 
of  the  Union  was  in  the  capacity  of  State  organizations  to  combine 
and  concentrate  all  the  powers  of  the  States  and  of  contiguous 
States  for  a  determined  resistance  to  the  General  Government. 


PRINCIPLES    OF    ITS    CONSTRUCTIOX.  101 

this  instrument  was  to  give  to  the  Central  Gov-  lecturk  ii.  ' 
eminent  that  power.  It  must  not  be  forgotten  tJrpretatToM. '"" 
that  the  Confederacy,  or  the  government  that 
existed  under  the  Articles  of  Confederation, 
could  only  request  the  States  to  do  a  great  many 
things  necessary  in  order  to  maintain  and  carry 
on  the  Federal  Government  successfully,  and 
that  it  was  desirable  to  give  the  new  one  the 
power  of  operating  directly  upon  the  people 
without  going  through  the  instrumentality  of 
the  States.  We  must  consider  that  under  the 
old  order  of  things  the  laws  were  enacted  to 
take  effect  through  the  action  of  the  State  legis- 
latures,^ which  ineffective  and  circuitous  method 
was  to  give  way  to  the  direct  legislation  of 
Congress ;  so  that  the  action  of  the  legislative 
branch,  and  concurrently  with  it  the  decisions  of 
the  judiciary,  should  act  immediately  upon  the 
people  themselves,  without  the  consent,  and  even 
against  the  wishes,  of  the  States,  if  it  were 
necessary. 


Unquestionably,  this  has  given  great  force  to  the  argument,  and 
added  largely  to  the  number  of  those  who  believe  in  the  necessity 
of  a  strong  National  Government."  Slauyhter-House  Cases,  16 
Wall.  3(5,  82. 

1  The  taxes  for  paying  the  proportion  needful  for  charges  of  war 
and  other  expenses  for  the  common  defence,  or  general  welfare, 
were  to  be  "laid  and  levied  by  the  authority  and  direction  of  the 
Legislatures  of  the  several  States."     Articles  of  Confederation,  VIIL 

The  Articles  of  Confederation  were  entirely  without  any  pro- 
vision for  enforcing  the  measures  which  they  authorized  Congress 
to  adopt  for  the  general  welfare  of  the  Union.  .  .  .  The  sole  means 
it  gave  to  Congress  of  supplying  the  treasury  of  the  United  States 
was  to  vote  what  sum  was  wanted,  and  call  upon  the  Legislature 
of  each  State  to  pay  in  its  proportion  within  a  given  time,  Curtis' 
Constitution. 


102 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  II. 
Principles  of  in- 
terpretation. 


All  these  things  are  to  be  considered  when  it 
is  sought  to  determine  the  force  and  eifect  of 
any  of  its  provisions.  Like  a  remedial  statute, 
or  a  contract  between  individuals,  it  must  be 
construed  in  the  light  of  the  times  in  which  it 
was  made,  with  reference  to  the  evils  to  be  reme- 
died, the  good  to  be  effected,  and,  above  all,  in 
the  light  of  the  idea  that  it  was  made  to  create 
a  perpetual  government  of  the  people,  among 
the  people,  and  by  the  people.^ 

Another  canon  of  construction  which  must 
not  be  overlooked  has  reference  to  the  funda- 
mental nature  of  the  novel  government  which 
was  erected,  very  much  in  the  nature  of  an 
experiment,^  by  the  Colonies  when  they  severed 
the  ties  which  bound  them  to  England.  The 
Federal  Government  which  they  founded  is  one 
of  conceded  or  granted  powers.  The  State  gov- 
ernments are  governments  authorized  to  exercise 
all  the  powers  not  prohibited  by  the  Federal  Gov- 


1  The  Constitution  was  for  a  new  government,  organized  with 
new  substantive  powers,  and  not  a  mere  supplementary  charter  to 
a  government  already  existing.  The  Confederation  was  a  compact 
between  States,  and  its  structure  and  powers  were  wholly  unlike 
those  of  the  National  Government.  The  Constitution  was  an  act  of 
the  people  of  the  United  States  to  supersede  the  Confederation,  and 
not  be  ingrafted  on  it,  as  a  stock  through  which  it  was  to  receive 
life  and  nourishment.  Story,  J.,  in  Martin  v.  Hunter'' s  Lessees,  I 
Wheat.  332. 

2  A  constitution  adopted  with  great  opposition,  the  .subject  of 
the  gravest  difference  of  opinion  among  the  wisest  men  on  its  most 
material  points,  was  quite  as  likely  to  fail  as  its  predecessor,  the 
Articles  of  Confederation,  had  failed.  The  field  was  absolutely 
untried.  Never  before  had  there  been  such  a  science  in  the  world 
as  the  law  of  a  written  constitution  of  a  government.  Address  of 
Hon.  Edward  J.  Phelps,  m  1879,  before  the  American  Bar  Associa- 
tion. 


rRINCIPLES    OF    ITS    CONSTEUCTION.  10^ 

ernment  or  by  the  Constitution  of  the  United  hRcruuK  u. 
States.^      There    is    a    correspondinc^    difference  f  """••'''.' "^"'- 

i  ~  terpretation. 

in  construction,  therefore,  and  this  difference 
pervades  the  Federal  and  State  constitutions 
throughout  the  entire  catalogue  of  their  powers 
and  the  limitations  thereon.  These  need  too 
extended  an  examination  to  be  considered  here, 
but  will  be  treated  under  their  appropriate  heads.  Difference  be- 
One  illustration  of  the  dift'erent  nature  of  the  IT"  w'^'' '""' 

Federal Goveru- 

powers  of  the  State  and  Federal  Governments  meuts. 
is  in  the  authority  to  punish  offences.  A  State 
legislature  can  declare  any  act  of  an  individual 
deemed  by  it  to  be  detrimental  to  the  public 
good  to  be  an  offence,  and  can  prescribe  for  it 
a  punishment.  Whatever  that  body  may  con- 
ceive to  be  injurious  to  the  general  welfare  they 
can  forbid,  and  if  it  is  done  they  can  punish  the 
infraction  of  their  law  by  a  penalty.  But  the 
Federal  Government  can  only  punish  offences 
against  the  powers  which  it  exercises.  Having 
exclusive  control  of  the  carrying  of  the  mail,^  it 
can  punish  persons  unlawfully  interfering  there- 
with in  any  way.  With  the  power  to  coin 
money  it  has  also  been  given  the  power  to 
punish  the  counterfeiting  of  that  coin.  Having 
authority  to  borrow  funds  for  its  needs,  it  can 
issue  bonds  therefor,  and  can  punish  the  coun- 
terfeiters of  those  bonds,  as  well  as  those  who 


1  The  powers  not  delegated  to  the  United  States  by  the  Constitu- 
tion, nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people.    Amendment  X. 

2  Congress  shall  have  the  power  to  establish  post-offices  and 
post-roads.     Constitution,  Art.  1,  sec.  8,  par.  7. 


104 


LECTUEES    ON    CONSTITUTIONAL    LAW. 


Lecture  II.        put    tliem    ill    circulation.^      But    the    national 
fweeTsutetnd    autlioritj  lias  no   power  to   punish   nuirder  or 
Federal  Govern-   theft    in    general,    bccause    that    is   within    the 
province  of  the  individual  States. 

The  General  Government  can  levy  taxes,  but 
they  must  be  for  a  defined  purpose,  such  as  the 
payment  of  the  public  debt,  or  of  the  array  and 
navy  of  the  United  States.  It  has  no  right  to 
raise  money  by  taxation  for  religious  purposes, 
or  for  a  thousand  things  on  account  of  which 
States  may  impose  taxes  and  collect  them  of 
the  people.  It  has  no  such  power,  because,  as 
has  already  been  intimated,  it  is  not  granted 
by  the  Constitution.^ 

There  is  no  part  of  the  great  system  of  con- 
stitutional law  in  which  modern  improvements 
have  been  greater,  and  have  more  steadily  pro- 
gressed in  a  proper  direction,  than  in  that  of 
limitations  upon  the  powers  of  the  legislative 
and  the  executive  branches  of  the  government.^ 


Coustitutional 
limitation  of 
power. 


1  Congress  shall  have  power  to  borrov?  money  on  the  credit  of  the 
United  States.  Constitution,  Art.  1,  sec.  8,  par.  2.  To  provide 
for  the  punishment  of  counterfeiting  the  securities  and  current 
coin  of  the  United  States.     Id.  par.  G. 

It  is  within  tlie  constitutional  powers  of  Congress  to  enact  laws 
to  provide  for  the  punishment  of  the  offence  of  counterfeiting  notes 
of  a  foreign  bank  or  corporation.  United  States  v.  Arjona,  120 
U.  S.  479. 

Congress  shall  have  power  to  lay  and  collect  taxes,  duties,  im- 
posts, and  excises ;  to  pay  the  debts,  and  provide  for  the  common 
defence  and  general  welfare  of  the  Ujiited  States.  Constitution, 
Art.  1,  sec.  8,  par.  1. 

2  There  can  be  no  lawful  tax  which  is  not  laid  for  a  public  pur- 
pose. See  cases  cited  ;  Loan  Association  v.  Topekn,  20  Wall. 
655,  664. 

3  The  theory  of  our  governments,  State  and  National,  is  opposed 
to  the  deposit  of  unlimited  power  anywhere.     The  executive,  the 


PRINCIPLES    OF    ITS    CONSTRUCTION.  105 

Both  the  Federal  and  the  State  constitutions  of  lecture  n. 
this    country    are    full    of   them.^       Under   the  limitaUoa'^oT 
boasted  constitution  of  Great  Britain  there  are  power, 
many  instances  in  which  a  man  has  been  con- 
demned to  death  by  its  Parliament  without  any 
reference  to  any  statute  or  law  existing  at  the 
time  authorizing  such  a  proceeding.     By  virtue 
of  the  omnipotent  power  reposed   in  the   king 
and  the  Parliament  of  that  country  a  man  might 
lose  his  life,  his  property  be   taken  from  him, 
and  his  blood  become  so  attainted  that  even  his 
children  could  not  inherit  it.^ 

Our  constitutions  are  limited  in  many  such 
respects.  No  government  in  this  country  would 
undertake  to  deprive  a  man  of  his  liberty  or 
property,  much  less  his  life,  without  the  author- 
ity of  an  already  existing  law.'^     So  in  regard  to 


legislative,  and  the  judicial  branches  of  these  governments  are  all 
of  limited  and  defined  powers.  Loan  Association  v.  l^opeka,  20 
Wall.  655,  66.S. 

1  "  The  Executive,  in  our  governments,  is  not  the  sole,  it  is 
scarcely  the  principal,  object  of  my  jealousy.  The  tyranny  of  the 
Legislatures  is  the  most  formidable  dread  at  present,  and  will  be  for 
many  years."  Letter  of  Jefferson  to  Madison,  March  15,  1789; 
Jefferson's  Works,  vol.  .3,  p.  5. 

2  See  the  instance  of  attainder  of  Lord  Seymour,  in  1548-9, 
whom  according  to  the  policy  of  that  age  the  Duke  of  Somerset 
thought  it  necessary  to  crush  by  a  bill  of  attainder.  He  was  in  his 
turn  also  prosecuted  in  the  same  manner  within  a  few  months  after 
the  execution  of  his  victim.  Hallam's  Constitutional  History  of 
England,  vol.  1,  p.  .39  (London,  1855).  See  also  the  attainder  of 
the  Earl  of  Strafford  by  the  Long  Parliament  in  1040.  2  lb.  10.3. 
Bills  of  attainder  were  by  no  means  uncommon  in  England,  espe- 
cially under  Henry  VIII. 

The  subject  of  bills  of  attainder  is  discussed  at  length,  both  in 
the  opinion  of  the  court  and  the  dissent  thereto,  in  Cnmmings  v. 
Missouri,  4  Wall.  277,  and  Ex  parte  Garland,  4  Wall.  3S?,. 

8  No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed  by 


suffrage. 


106  LECTUKES    ON    CONSTITUTIONAL    LAW. 

lk(ti'rk  ii.  private  property  taken  for  public  uses.  All 
limitaHon'ot^  governments  exercise  this  right ;  but  while  it  is 
power.  done  by  others  without  any  fixed  rule  in  regard 

to  compensation,  all  of  our  constitutions,  both 
Federal  and  State,  provide  that  private  property 
shall  not  be  so  taken  without  just  compensation.^ 
Indeed,  the  tendency  of  all  changes  in  constitu- 
tional governments,  both  in  this  country  and  in 
all  others  where  sound  principles  of  political 
economy  are  taught  and  discussed,  is  to  the  fur- 
ther protection  of  private  rights  as  against  the 
governing  power,  which  represents  the  entire 
body  politic. 
Extension  of  the  There  is  auothcr  change  going  on  in  this 
country,  which,  whether  it  shall  turn  out  to  be 
so  worthy  of  praise  or  not,  remains  for  time  to 
settle;  that  is,  the  tendency  to  popularize  suf- 
frage and  to  extend  the  elective  principle  to  a 
vast  number  of  offices  not  formerly  within  its 
purview.     But  it  is  difficult  to  believe  that,  in 

Congress  (Constitution,  Art.  1,  sec.  9,  par.  3),  or  by  a  State  (Art. 
1,  sec.  10,  par.  1). 

No  State  shall  make  or  enforce  any  law  that  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States,  nor  shall 
any  State  deprive  any  person  of  life,  liberty,  or  property  without  due 
process  of  law,  nor  deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws.     Constitution,  Amendment  XIV,  sec.  1. 

Nor  shall  private  property  be  taken  for  public  use  without  just 
compensation.     Amendment  V. 

1  In  nearly  all  of  the  constitutions  of  the  various  States  of  the 
Union  provision  has  been  made  substantially  of  this  character,  and 
in  most  cases  in  the  exact  language  of  the  Federal  Constitution. 
It  usually  occurs  in  what  is  designated  as  the  Bill  of  Rights  prefa- 
tory to  the  main  body  of  the  instrument.  See  Charters  and  Con- 
stitutions of  the  United  States  (Ben :  Perley  Poore,  Washington, 
1878),  containing  the  complete  texts  of  all  the  constitutions  of  the 
States. 


PRINCIPLES    OF    ITS    CONSTRUCTION.  H)7 

any  country  where  the  people  are  governed  by  lecturk  ii. 
laws  made  by  legislatures,  the  basis  upon  which  suffrage!'' " 
the  representation  stands  can  be  too  large.  It 
may,  however,  be  doubted  whether  the  elective 
prhiciple  can  safely  be  applied  to  that  class  of 
officers,  especially  the  judicial,  whose  duty  it  is 
to  enforce  the  laws. 

The  importance  of  a  thorough  knowledge  of  a  knowledge  of 
constitutional  law  to  those  who  propose  here- ^g^^l^^^^J'^J^'^^'"^ 
after  to  practise  the  profession  of  the  law  in  this  lawyer, 
country  can  hardly  be  exaggerated.  The  time 
has  been,  and  until  very  recently,  that  a  lawyer 
might  attain  a  great  practice  and  a  very  high 
reputation  in  the  State  courts,  and  some  of  the 
first  reputations  in  the  country  have  been  so 
made,  without  ever  having  practised  at  all  in 
the  Federal  courts,  or  having  his  attention  called, 
except  perhaps  incidentally,  to  this  subject,  or 
the  matters  we  have  been  discussing.  But  that 
period  in  the  history  of  the  country  has  passed. 
The  time  has  come  when  the  Constitution  and 
laws  of  the  United  States  are  not  the  mere  theo- 
retical object  of  the  thoughts  of  the  statesman, 
the  lawyer,  or  the  man  of  affairs ;  for  the  opera- 
tions of  its  Government  now  reach  to  the  recesses 
of  every  man's  business,  and  force  themselves 
upon  every  man's  thoughts. 

The  history  of  the  events  which  led  to  the 
recent  War  of  the  Rebellion,  and  of  the  times 
subsequent  thereto,  taught  the  people  of  this 
country,  in  a.  manner  which  it  is  to  be  hoped 
will  never  again  be  necessary,  that  this  Govern- 
ment within  its  sphere  is  supreme,  and  that  its 


108  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  II.  Sphere  is  a  very  extensive  and  pervading  one. 
fJ'ZS:,:!  Leaving  out  of  the  question  now  all  tliat  took 
essential  to  a  place  Under  the  period  of  reconstruction,  many 
awyer.  other  matters  have  come  into  play  in  the  opera- 

tions of  the  Federal  Government  which  were  pre- 
viously almost  unknown. 

An  illustration  of  this  is  to  be  seen  in  the 
internal  revenue  system,  under  which,  during 
the  years  immediately  succeeding  the  Rebellion, 
almost  every  species  of  property,  occupation,  and 
pursuit,  and  many  things  which  had  scarcely 
acquired  the  name  of  property  or  occupation, 
were  taxed  by  the  Federal  Government  to  pay 
the  interest  and  principal  of  the  debt  incurred 
in  that  war,  as  well  as  for  the  expenses  of  the 
Government,  largely  increased  by  its  operations. 
Those  statutes,  and  the  taxes  which  were  laid 
under  them,  even  if  everybody  was  willing  to 
submit  to  them  cheerfully,  required  construction. 
They  were  new  to  the  country.  When  the  laws 
were  put  into  operation  the  officers  themselves 
were  frequently  very  much  perplexed  to  know 
what  they  meant,  and  the  Government,  desiring 
that  no  person  should  be  injured,  was  ready, 
and  afforded  opportunities,  to  have  the  laws 
tested  by  courts  of  justice.  A  man  had  but  to 
pay  his  taxes,  and  take  an  appeal  to  the  com- 
missioner who  had  supervision  of  those  matters. 
If  he  failed  there  he  could  sue  the  man  who  col- 
lected them,  and  recover  if  they  were  illegally 
assessed.  The  number  of  suits  growing  out  of 
this  class  of  cases  was  immense,  and  has  been  so 
ever  since  the  internal  revenue  system  was  es- 


PKINCIPLES    OF    ITS    CONSTRUCTION.  109 

tablished.    The  list  of  articles  subject  to  taxation  lecturk  ii. 
has  been  very  larsrely  decreased,  but  it  is  prob- ,^  ^I',*"*''".''*""'/'^ 
able  that  a  very  large  sum,  possibly  approaching  essential  to  a 
one  hundred  millions  of  dollars,  which  sum  has  '^^^^'""' 
been  largely  exceeded  every  year  since  the  estab- 
lishment  of  the   present   system   in   1863,  will 
always  be  raised  annually  in  this  country  by  the 
taxation  imposed  by  the  Federal  Government  on 
spirits,  tobacco,  and  malt  liquors.^ 

But  it  is  not  only  when  a  suit  is  brought,  or 
is  to  be  brought,  that  the  lawyer  is  called  upon 
to  understand  these  things,  or  to  give  counsel  in 
regard  to  this  jurisdiction  and  these  laws.  He 
is  very  often  consulted  as  to  what  a  party  should 
do  where  no  suit  is  contemplated.  Neither  is 
this  knowledge  necessary  or  useful  only  in  the 
large  business  centres  ;  but  the  system  permeates 
the  entire  country,  so  that  the  remotest  village 
lawyer  may  be  called  upon  to  advise  upon  ques- 
tions of  constitutional  or  statutory  construction, 
or  as  to  the  manner  in  which  the  laws  are  en- 
forced by  the  officials  charged  with  that  duty. 

It  may  also  be  noted  that  the  bankruptcy 
laws  have  greatly  modified  the  existing  system 
of  enforcing  contracts  or  collecting  debts,  in 
the  case  of  persons  who  fail  to  meet  their 
engagements,  or  to  pay  for  want  of  ability  to  do 

^  For  annual  statistics  of  internal  revenue  receipts  of  the  United 
States  from  March  4,  1789,  to  June  30,  1886,  see  Spofford's  Ameri- 
can Almanac,  1887. 

Many  decisions  of  controverted  questions  on  this  subject,  which 
were  referred  to  the  Attorney  General  of  the  United  States,  are 
collated  in  the  Digest  of  Opinions  of  Attorney  General,  tit.  Internal 
Revenue. 


110 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  II. 
A  knowledge  of 
the  Constitution 
essential  to  a 
lawyer. 


SO.  Those  laws  are  administered  under  Federal 
statutes,  and  not  only  under  an  act  of  Congress, 
but  under  the  rules  of  practice  prescribed  and 
adopted  for  the  courts  of  the  United  States.^ 
The  lawyer  who  does  not  know  when  a  man 
has  committed  an  act  of  bankruptcy,  or  who 
does  not  know  how  to  institute  a  proceeding  in 
such  a  court,  can  hardly  expect  to  receive  a  full 
share  of  practice  in  any  community. 

In  addition  to  this  the  admiralty  jurisdiction 
of  the  Federal  courts  has,  within  the  last  few 
years,  by  constructions  placed  upon  it  by  those 
courts,  received  an  immense  increase  in  its 
extent.  Down  to  1851  it  was  held  to  be 
limited  in  fact  to  the  seaboard,  if  not  actually 
to  the  sea.    It  extended  no  further  on  the  rivers 


^  Congress  shall  have  power  ...  to  establish  .  .  .  uniform 
laws  on  the  subject  of  bankruptcies 'throughont  the  United  States. 
Constitution,  Art.  1,  sec.  8,  par.  4. 

See  acts  of  April  4,  1800,  2  Stat.  19,  c.  19;  December  19,  1803, 
2  Stat.  248,  c.  0  ;  August  19,  1841,  5  Stat.  440,  c.  9  ;  and  March  2, 
1867,  14  Stat.  517,  c.  17G.  A  State  may,  however,  pass  a  bankrupt 
law,  provided  there  is  no  act  of  Congress  conflicting  with  it. 
Sturges  v.  Crowiiinshield,  4  Wheat.  122. 

As  to  what  is  a  bankruptcy,  see  opinion  of  Judge  Catron  deliv- 
ered in  the  Circuit  Court  Tii  re  Klein,  1  How.  277.  The  whole  sub- 
ject was  elaborately  considered  by  the  Supi'eme  Court  of  New  York 
in  Kunzler  v.  Kohmis,  5  Hill,  317,  and  Sackett  v.  Andross,  5  Hill, 
327. 

By  the  act  of  Congress,  approved  June  7, 1878,  20  Stat.  99,  c. 
160,  the  bankruptcy  law  of  1867,  14  Stat.,  517,  c.  176,  and  all 
supplementary  acts,  incorporated  in  the  Revised  Statutes,  sections 
4972  to  5132,  were  repealed,  to  take  effect  September  1,  1878. 
Pending  cases  were  not,  however,  affected.  A  strong  effort  has 
been  made  to  secure  another  national  act  of  a  similar  character, 
and  one  has  been  past  the  Senate,  but  failed  of  action  in  the 
House. 

For  rules  of  court  in  bankruptcy,  see  Desty's  Federal  Procedure, 
p.  337. 


PRINCIPLES    OF    ITS    (  ONSTKUCTION.  Ill 

than  the  tide  ebbed  and  flowed.     But  the  Su-  lecture  ii. 
preme  Conrt  of  the  United  States  has  since  de-  ,^  '^;':'^i«:|««."f 

I-  the  (.onslifutioii 

cided  that  it  extended  to  all  navigable  streams ;  essential  to  a 
that  it  was  a  system  of  laws  intended  to  have  '^^^^*^'"' 
operation  upon  the  interests  of  navigation ;  that 
whether  it  took  place  upon  salt  or  fresh  water 
was  entirely  immaterial,  and  that  the  Constitu- 
tion of  the  United  States,  when  it  declared  that 
the  Federal  courts  should  have  jurisdiction  in 
admiralty,  meant  that  they  should  have  jurisdic- 
tion in  all  that  class  of  cases  which  heretofore 
had  been  called  admiralty  cases,  whetlier  they 
grew  out  of  salt  water  transactions  or  of  engage- 
ments and  acts  upon  fresh  water. ^ 

The  decision  of  this  principle  has  made  the 
subject  of  questions  concerning  the  carrying 
trade  by  steamboats  upon  our  rivers  and  lakes 
one  of  much  interest  to  every  lawyer  through- 
out the  great  interior  of  this  country.  Every 
steamboat  becomes,  in  regard  to  suits  concern- 
ing its  transactions  or  its  contracts,  as  well  as 
in  regard  to  torts  committed  by  its  officers,  sub- 
ject to  the  admiralty  jurisdiction  of  the  courts 
of  the  United  States.  By  an  act  of  Congress 
passed  in  the  earliest  history  of  the  country, 
where  the  action  is,  strictly  speaking,  an  admi- 
ralty case;  that  is,  one  known  and  recognized 

1  In  the  case  of  The  Thomas  Jefferson,  10  Wheat.  428,  it  was 
decided  that  the  jurisdiction  of  tlie  courts  of  admiralty  in  the 
United  States  was  limited  to  the  ebb  and  flow  of  the  tide  ;  but  in 
The  Genessee  Chief  v.  Fitzhugh,  12  How.  4-43,  it  was  held  that  it 
was  not  limited  to  the  tide  waters,  but  extends  to  all  pubfic  navi- 
gable lakes  and  rivers  where  commerce  is  carried  on  between  differ- 
ent States,  or  with  a  foreign  nation.     See  Notes  upon  this  Lecture. 


atioQs. 


112  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  II.  as  belonging  to  the  ancient  jurisdiction  of  admi- 
L^constiuuioi  ^'^l^y  i^  England  and  onthe  Continent,  the  Fed- 
esseutiai  to  a  eral  courts  havc  exclusive  jurisdiction,  and  it 
^'''^^^^'  cannot  be  exercised  by  the  State  courts.^     If  a 

lawyer,  therefore,  expects  to  have  a  large  prac- 
tice in  any  part  of  the  country  now,  he  must 
know  something  of  admiralty  law  and  its  juris- 
diction and  application. 
General  consider-  It  is  evident,  therefore,  that  the  discussion  of 
the  principles  which  have  been  outlined  has 
something  more  than  a  mere  theoretical  value, 
not  only  to  every  lawyer,  but  to  every  citizen 
living  under  the  authority  and  protection  of  a 
constitutional  government.  Questions  of  consti- 
tutional law,  especially  in  regard  to  the  Consti- 
tution of  the  United  States,  have  become  matters 
of  common  occurrence  in  the  courts.  Whether 
it  is  that  the  Congress  of  the  United  States  has 
taken  a  more  liberal  view  of  its  powers  than 
formerly,  or  whether  it  is  that  the  people  are 
more  disposed  to  question  the  exercise  of  its 
powers,  may  be  open  to  question,  but  certain  it 
is  that  hardly  any  act  of  that  body  in  modern 
times  can  be  brought  to  bear  upon  an  individual, 
to  which  he  is  reluctant  to  assent,  that  he  does 
not  attempt  to  raise  the  question  of  its  con- 
stitutional power  to  pass  it.  Our  books  of 
reports,  both  State  and  Federal,  are  thus  filled 


1  The  original  jurisdiction  in  admiralty  exercised  by  the  District 
Courts,  was  regulated  by  the  act  of  September  24,  1789,  1  Stat.  73, 
c.  20,  and  enlarged  by  the  act  of  February  26,  1845,  5  Stat.  726,  c. 
20.  It  is  exclusive  in  those  courts,  not  only  of  other  Federal  courts, 
but  of  the  State  courts  also.     The  Hine  v.  Trevor,  4  Wall.  555,  569. 


PRINCIPLES    OF    ITS    CONSTRUCTION.  113 

with  decisions  upon  questions  of  constitutional  lkcture  ii. 

1  General  consider- 

■^^^^-  ations. 

With  the  rapid  progress  of  this  country  in 
wealth,  and  its  growth  in  population  and  power, 
it  is  but  natural  that  there  should  be  a  great  in- 
crease in  litigation.  Out  of  the  multiplication 
of  corporations  of  all  kinds,  and  the  changes  in 
the  methods  for  the  transportation  of  persons 
and  property,  which  have  taken  place  within  a 
few  years,  have  arisen  a  vast  number  of  suits 
before  almost  entirely  unknown,  involving  also 
new  principles  of  construction  and  application. 

The  Federal  Government  is  exercising  to  some  interstate  cob»- 
extent  its  powers  over  this  subject  of  transpor- ™^'^*^®" 
tation,  under  the  clause  of  the  Constitution  of 
the  United  States  which  declares  that  Congress 
shall  have  the  right  to  regulate  commerce  with 
foreign  nations,  with  the  Indian  tribes,  and 
amono;  the  several  States.^  State  leo-islatures 
are  constantly  enacting  laws  for  the  promotion 
of  their  purposes,  for  the  raising  of  money,  or 
for  the  protection  of  what  they  consider  their 
individual  rights,  which  are  supposed  to  be  in 
conflict  with  this  right  of  Congress  to  regulate 
commerce  among  the  States ;  and  the  Supreme 
Court  of  the  United  States  has  been  flooded  in 
recent  years  with  questions  concerning  the 
power  of  the  States  to  pass  laws  regarding  tax- 

1  Congress  shall  have  power  to  regulate  commerce  with  foreign 
nations,  and  among  the  several  States,  and  with  the  Indian  tribes. 
Constitution,  Art.  1,  sec.  8,  par.  3. 

See  "an  act  to  regulate  commerce,"  generally  known  as  the 
Interstate  Commerce  Act,  approved  February  4,  1887,  24  Stat.  379, 
c.  104. 


114  LECTURES    ON    CONSTITUTIONAL    LAW. 


lectukk  II.        ation,   and   other  matters  supposed   to  infringe 
merer'' ''*°''     upon  the  rights  of  individuals  as  citizens  of  the 

Federal  Government.^ 
The  Tiiirtoenth,         By  the  receiit  amendments  to  the  Constitu- 
Fourtoenth,  and    ^-        adopted   siuce   the   War  of    the  Rebellion 

Fifteenth  Amend-  . 

ments.  ended/  new  questions  of  constitutional  law,  in- 

volving the  relations  sustained  by  the  Federal 
Government  to  the  States  and  their  people,  have 
been  raised,  and  are  constantly  arising,  which 
require  attentive  consideration.  A  mass  of 
people,  several  millions  in  number,  who  were 
not  theretofore  citizens  of  the  United  States, 
have  been  made  such  by  those  amendments. 
That  class  of  people  who  were  declared  by  the 
Dred  Scott  decision,^  in  1856,  to  have  no  rights 

1  The  cases  on  this  subject  are  so  numerous  that  attention  need 
now  only  be  directed  to  several  of  the  most  recent,  in  which  the 
previous  decisions  and  history  of  the  matter  are  referred  to. 

Interstate  commerce  cannot  be  taxed  at  all  by  a  State.  Bobbins 
V.  Shelby  County  Taxing  District,  120  U.  S.  489. 

A  prosecution  of  a  citizen  and  resident  of  New  York  for  selling 
by  sample  in  the  State  of  Maryland  without  a  license  held  to  be 
constitutional  under  the  commerce  clause  of  the  Federal  Constitu- 
tion.    Coison  V.  Maryland,  120  U.  S.  502. 

A  State  statute,  which  levies  a  tax  upon  the  gross  receipts  of 
railroads  for  the  carriage  of  freight  and  passengers  into,  out  of,  or 
through  the  State,  is  a  tax  upon  commerce  among  the  States,  and 
therefore  void.     Fartjo  v.  Michigan,  121  U.  S.  230. 

See  also  very  full  reference  to  previous  cases  and  authorities 
in  Wabash,  St.  Louis  &  Pacific  Raihoay  Co.  v.  Illinois,  118  U.  S. 
557. 

Mr.  Garfield  said  in  the  House  of  Representatives  :  "  Chief  Jus- 
tice Marshall,  tliat  great  judge  who  found  the  Constitution  paper, 
and  made  it  a  power,  who  found  it  a  skeleton,  and  clothed  it  with 
flesh  and  blood.  By  his  wisdom  and  genius,  he  made  it  the  potent 
and  beneficent  instrument  for  the  government  of  a  great  nation." 
Record,  46  Congress,  p.  2390. 

2  Amendments  XIII,  XIV,  and  XV. 

3  Dred  Scott  v.  Sandford,  19  How.  393. 


PRINCIPLES    OF    ITS    CONSTRUCTION.  H", 

which  a  white  man  was  bound  to  respect,  have  lecture  h. 
come  to  have  all  the  learal  or  civil  rights  which  ^ ''"  'i"J''rteentii, 

°  •  Fourteenth,  and 

a  white  man  has.  Fifteenth  Aiueud- 

Attorneys  and  courts  are  frequently  called  ™^°''*' 
upon  to  construe  the  Constitution  of  the  United 
States,  and  the  laws  passed  in  pursuance  thereof, 
as  well  as  to  determine  questions  of  the  con- 
flict of  State  constitutions  and  laws  therewith. 
Any  lawyer  may  at  any  time  be  called  upon  to 
advise  about  all  of  these  questions  which  have 
been  so  briefly  suggested,  and  to  put  in  operation 
the  machinery  of  the  law  of  the  Federal  Govern- 
ment for  the  protection  of  the  rights  of  his 
client.  No  branch  of  the  law  is  of  more  impor- 
tance to  the  counsellor,  the  statesman,  or  the 
citizen,  than  a  thorough  acquaintance  with  the 
Constitution  and  laws  of  the  Federal  Govern- 
ment, as  they  are  administered,  and  as  they 
affect  the  rights  of  the  people. 

In  this  connection  may  be  appropriately  cited 
the  words  of  Chancellor  Kent,  one  of  the  most 
able  and  accomplished  writers  upon  legal  topics 
that  this  country  ever  produced,  which,  deliv- 
ered a  half  century  ago,  derive  added  force  from 
the  great  historical  events  which  have  occurred 
since  he  passed  away. 

"  The  Government  of  the  United  States  was 
erected  by  the  free  voice  and  joint  will  of  the 
people  of  America  for  their  common  defence  and 
general  welfare.  Its  powers  apply  to  those 
great  interests  which  relate  to  this  country  in 
its  national  capacity,  and  which  depend  for 
their  stability  and  protection  on  the  consolida- 


116  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  II.        tioii  of  the  Uiiion.     It  is  clothed  with  the  prm- 

i^Tirtertirand    ^ipal  attributes  of  political  sovereignty,  and  it 

Fifteenth  Amend-  is  justly  deemed  the  guardian  of  our  best  rights, 

the    source   of    our    highest  civil    and    political 

duties,  and  the  sure   means  of  national  great- 

"  1 
ness. 

1  1  Kent's  Commentaries,  201. 


NOTES   UPON   LECTURE   II. 


From  the  very  beginning  of  the  Government  lecture  ii. 
there  have  been  two  theories  for  the  construction  ^^^^^^,  ^^",_j.^  ^^^^ 
of  the  Constitution.  The  thorough-going  Fed- ones  of  construc- 
eralist  on  the  one  hand,  insists  that  it  must  be 
construed  with  reference  to  the  circumstances 
which  made  it  necessary,  and  with  a  just  concep- 
tion of  the  objects  which  its  framers  desired  to 
accomplish  by  it.  Hence  he  contends  that  the 
delegated  powers  are  to  be  construed  liberally, 
and  that  implied  powers  are  to  be  assumed 
when  necessary  to  fully  carry  delegated  powers 
into  effect.  On  the  other  hand,  the  strict  States' 
rights  man  plants  himself  upon  the  Tenth 
Amendment,  as  the  people's  contemporaneous 
construction,  and  contends  that  the  National 
Government  is  a  government  with  delegated 
powers  only,  and  that  the  Instrument  of  delega- 
tion should  be  construed  strictly. 

If  I  understand  the  views  of  Justice  Miller,  Weight  to  be 
while  his  personal  sympathies  were  undoubtedly  ^^j,^"^^,"J "),"'* 
in  the  main  with  the  Federalists,  he  belonged  to 
neither  school.  He  was  of  the  opinion  that  the 
powers  of  the  Central  Government  are,  in  the 
end,  practically  to  be  settled  by  the  judiciary ; 
and  that  judicial  decisions  upon  constitutional 
questions  are  entitled  to  the  respect  which  those 

117 


118  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  II.        decisions  receivG  in  questions  of  law.     Although 
Weight  to  be        J     admits  that  the  Executive  must  act  accordint^ 

given  to  judicial  _  _  '-' 

coustruction.  to  its  owu  light  wlicii  new  questions  arise,  he 
inclines  to  the  view  that,  under  the  Constitution, 
the  Supreme  Court  is  the  proper  interpreter  of 
that  instrument ;  and  that  its  interpretation, 
especially  when  repeatedly  given,  ought  to  have 
controlling  weight. 

It  may  be  objected  to  this  theory  that  the 
judiciary  has  been  at  different  times,  on  both 
sides  of  many  questions  of  constitutional  law ; 
as  for  instance  on  the  constitutional  limits  of 
admiralty  jurisdiction,  and  on  the  constitution- 
ality of  the  Legal  Tender  Act.  Nevertheless  it 
must  be  true  that  a  power  of  authoritative  inter- 
pretation is  lodged  somewhere.  We  have  seen 
in  the  outcome  of  the  doctrine  first  announced 
in  the  Dartmouth  College  Case,^  how  a  theory  of 
construction,  novel  when  propounded,  may,  as 
time  rolls  on,  commend  itself  and  be  univer- 
sally accepted.  Judicial  interpretation  can  be- 
come necessary  or  possible  only  when  private 
interests  are  in  litigation  ;  but  when  the  same 
question  often  recurs,  and  is  as  often  decided  in 
the  same  way,  an  accepted  rule  of  construction 
comes  at  last  into  force.  It  is  in  the  courts 
alone  that  opportunity  is  given  for  such  repeated 
consideration  and  reconsideration  of  a  constitu- 
tional question ;  and  hence  their  decisions  should 
have  persuasive  weight. 

Prior  to   the    adoption    of   the    Constitution, 

1  4  Wheat.  518. 


NOTES    UPON    LECTURE    II.  119 

there  being  no  Federal  judicicary  (with  the  ex-  lecture  ii. 
ception  of  the  Prize  Courts),  Congress  itself  set  ^I,t".o'j,u,iciai 
the  limit  to  its  own  powers  by  its  executive  and  construction, 
legislative  acts.  In  the  Note  to  Chapter  I,  tak- 
ing as  a  starting-point  the  fact  that  the  Constitu- 
tion was  the  historic  outcome  of  various  efforts  at 
nationality  during  preceding  years,  an  attempt 
was  made  to  learn  from  history  what  construc- 
tion Congress  at  that  time  put  upon  its  own  pow- 
ers. We  saw  it  forced  by  necessity  to  assume 
functions  of  sovereignty  which  had  dropped  from 
the  hands  of  the  king  of  Great  Britain,  and  to 
exercise  them  repeatedly  and  without  question 
prior  to  the  adoption  of  any  Articles  regulating 
the  relations  between  it  and  the  individual  States. 
We  saw  Congress,  after  the  adoption  of  those 
Articles,  receive  the  cession  of  an  empire,  and 
determine  the  character  of  its  civilization,  with- 
out having  received  in  the  Articles  authority  to 
do  so.  These  exercises  of  sovereign  power,  grow- 
ing out  of  the  necessities  of  the  people  of  the 
whole  United  States,  were  unquestioned  when 
made,  and  have  not  been  doubted  since.  The 
most  extreme  Federalist  must  admit,  however, 
that  such  a  rule  of  construction  is  loose  and 
dangerous,  and  that  it  should  be  resorted  to  only 
in  case  of  necessity. 

The  Constitution  gave  to  the  people  a  judi- 
ciary to  protect  it  against  an  abuse  of  its 
powers  by  either  co-ordinate  branch  of  the  Gov- 
ernment, on  the  one  hand ;  and,  on  the  other 
hand,  to  recognize  as  just  and  constitutional  an 
exercise  of    power  assailed  as  unconstitutional. 


120  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkcture  ii.  Although  the  Supreme  Court  of  the  United 
Tven''to*°Jdidai  States  has  become  one  of  the  recognized  great 
constructiou.  Jaw  courts  of  the  world,  Avhose  decisions  on 
questions  of  law,  civil  and  international,  are 
everywhere  regarded  with  the  highest  respect,  it 
is  not  too  much  to  say  that  its  greatest  and  its 
most  important  work  has  been  done  in  the  set- 
tlement of  disputed  points  of  constitutional  law. 
Persons  not  familiar  with  its  reports  have  little 
conception  of  the  amount  of  time,  of  labor,  and 
of  thought  which  has  been  expended  upon  this 
subject. 

Out  of  the  mass  of  decisions,  running  through 
one  hundred  and  forty  volumes,  I  select  four 
subjects  as  specially  illustrating  the  fundamen- 
tal principle  of  construction  which  appears  to 
have  prevailed  throughout  the  hundred  years. 
The  first  of  these  cases  related  to  the  Appellate 
Prize  Courts  of  the  Revolution,  and  the  judg- 
ment was  rendered  in  the  early  part  of  the  first 
quarter  of  the  century.  The  second  subject  was 
the  acquisition  of  Louisiana,  which  was  sus- 
tained judicially  in  the  second  quarter.  The 
third  relates  to  admiralty  jurisdiction,  which 
was  extended  by  the  legislature,  and  the  exten- 
sion judicially  sustained,  in  the  third  quarter. 
The  fourth  is  the  legislation  making  the  prom- 
ises of  the  United  States  a  legal  tender,  which 
was  finally  sustained  by  the  Supreme  Court  near 
the  close  of  the  fourth  quarter  of  the  century. 


NOTES    UPON    LECTURE    II.  121 

1.   The  Judgments  of  the  Appellate  Prize  Courts. 

The  validity  of  these  judgments  came  before  lecture  ii. 
the  court  at  the  February  Term,  1795,'  on  the  *:;Z:'^J:„<,„ 
following  facts.    In  April,  1776,  Congress  agreed  tiie  jndKmenteof 

P  f.  .      .  IP  the  Prize  Courts 

upon  a  lorm  oi  commission  to  commanders  oi  ^f  the  coufedera- 
private  vessels  of  war,  and  such  a  commission  was  t^on. 
issued  to  Joshua  Stackpole  of  New  Hampshire, 
as  commander  of  the  McClary.  In  October, 
1777,  while  in  command  of  that  vessel,  he  cap- 
tured the  brigantine  Susanna  on  the  high  seas, 
and  carried  her  into  the  port  of  Portsmouth  for 
condemnation  as  lawful  prize.  The  legislature 
of  New  Hampshire  had,  on  the  3d  of  July,  1776, 
created  a  Prize  Court,  with  a  right  of  appeal  to 
the  Continental  Congress  when  the  capture  was 
made  by  an  "  armed  vessel  fitted  out  at  the 
charge  of  the  United  Colonies,"  and  in  other 
cases  to  the  Superior  Court  of  the  State.  Con- 
gress had,  as  we  have  already  seen,  taken  ap- 
pellate jurisdiction  in  many  such  cases  before 
the  date  of  the  capture. 

The  Susanna  and  her  cargo  were  libelled  in 
the  Maritime  Court  of  New  Hampshire,  and 
condemned  as  lawful  prize  and  ordered  to  be 
sold.  An  appeal  to  Congress  was  claimed  from 
this  decree  and  was  refused.  The  claimants 
then  took  an  appeal  to  the  Superior  Court  of 
New  Hampshire,  which  was  granted,  and  the 
judgment  below  was  affirmed  there.  The  claim- 
ants took  an  appeal  to  Congress  from  this 
judgment,   which  was    not    allowed ;    but   they 

1  Fenhallow  v.  Doane,  3  Dall.  54. 


122  LECTURES    ON    CONSTITUTIONAL    LAW. 

leoturk  II.  nevertheless  lodged  their  petition  there  in  Octo- 
s;;prreCWonber,  1778,  within  the  prescribed  time,  asking 
the  judgments  of  Congress  to  hear  the  appeal.     Congress  decided, 

tlie  Prize  Courts         ™,  ,.  .  ,       ,     i         •       •    t    i-  -i        j-l 

of  the  confedera-  ^iter  discussion,  to  take  jurisdiction  ;  and,  alter 

^io'i-  hearing  the   parties,  reversed  the  judgment  of 

the  court  below  in  September,  1783. 

After  the  organization  of  the  Federal  judiciary 
under  the  Constitution,  tlie  representatives  of 
these  appellants  instituted  proceedings  in  admi- 
ralty in  the  District  Court  of  the  United  States 
in  New  Hampshire  to  enforce  the  judgment 
of  the  Appellate  Court,  citing  in  the  owners 
of  the  McClary;  and,  as  the  result  of  the  pro- 
ceedings, the  libellants  obtained  a  judgment  for 
upwards  of  $38,000.  This  was  the  case  brought 
for  review  to  the  Supreme  Court  by  writ  of  error. 
It  is  plain  that  it  involved  the  question  of  the 
jurisdiction  of  the  Court  of  Appeals  over  the  ap- 
peal in  October,  1778,  when  the  petition  of  the 
appellant  was  presented.  Judgment  was  an- 
nounced January  24,  1795,  the  judges  delivering 
their  opinions  seriatim.  The  court  consisted  of 
Mr.  Jay,  Chief  Justice  (who  was  absent) ;  Mr. 
Cushing  of  Massachusetts ;  Mr.  Wilson  of  Penn- 
sylvania ;  Mr.  Blair  of  Virginia  ;  Mr.  Iredell  of 
North  Carolina ;  and  Mr.  Paterson  of  New  Jer- 
sey. Mr.  Paterson,  Mr.  Blair,  and  Mr.  Wilson 
were  members  of  the  convention  which  framed 
the  Constitution. 

Mr.  Justice  Paterson,  speaking  first,  divided 
the  question  of  the  jurisdiction  of  the  Appellate 
Prize  C9urt  into  two  branches ;  (1)  acts  done 
before  the  adoption  of  the  Articles  of  Confeder- 
ation in  1781 ;  (2)  acts  done  after  that  time. 


NOTES    UPON    LECTURE    II.  123 

In  respect  of  the  first  he  said  :    "The  powers  lkcture  ii. 

e    r^  1     ,•  •  ^    ii.    •  J.  Action  of  the 

of  Congress  were  revokitionary  in  their  nature,  s„prer,.eConrton 
arising  out  of  events,  adequate  to  every  national  f'e  jiKigments  of 

,  .  .  •,!      ii  1   •       i    J      the  Prize  Courts 

emergency,  and  co-extensive  with  the  object  to  „f  ^^g  confedera- 
be  attained.  Congress  was  the  general,  supreme,  ^'o"- 
and  controlling  council  of  the  nation,  the  centre 
of  union,  the  centre  of  force,  and  the  sun  of  the 
political  system.  To  determine  what  their 
powers  were,  we  must  inquire  what  powers  they 
exercised.  Congress  raised  armies,  fitted  out  a 
navy,  and  prescribed  rules  for  their  government ; 
Congress  conducted  all  military  operations,  both 
by  land  and  sea;  Congress  emitted  bills  of  credit, 
received  and  sent  ambassadors,  and  made  trea- 
ties ;  Congress  commissioned  privateers  to  cruise 
against  the  enemy,  directed  what  vessels  should 
be  liable  to  capture,  and  prescribed  rules  for  the 
distribution  of  prizes.  These  high  acts  of  sover- 
eignty were  submitted  to,  acquiesced  in,  and 
approved  of  by  the  people  of  America.  .  .  . 
There  was  but  one  war,  and  one  sovereign  will 
to  conduct  it.  The  danger  being  imminent  and 
common,  it  became  necessary  for  the  people  or 
Colonies  to  coalesce  and  act  in  concert  in  order 
to  divert  or  break  the  violence  of  the  gathering 
storm ;  they  accordingly  grew  into  union,  and 
formed  one  great  political  body,  of  which  Con- 
gress was  the  directing  principle  and  soul." 

On  the  second  point  he  said  :  "  The  Court  of 
Appeals,  in  September,  1783,  decided  upon  the 
point  of  jurisdiction,  either  directly  or  inciden- 
tally ;  for,  after  a  full  hearing,  they  decreed  that 
the  sentences  passed  by  the  superior  and  mferior 


124  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkcture  it.  courts  of  New  Hampsliire  should  be  reversed 
Action  of  tii«.       ^^^^  annulled,  and  the  property  be  restored.     This 

Supreme  Court  on  -"  i       i  ^ 

the  jiuignients  of  decree,  being  made  by  a  court  constitutionally 
ofUiJ^confederL  established,  of  competent  authority  and  the  high- 
tioQ-  est  jurisdiction,  is  conclusive  and  final." 

Mr.  Justice  Iredell  said :  "  When  acts  were 
passed  by  the  Parliament  of  Great  Britain, 
which  were  thought  unconstitutional  and  unjust, 
and  when  every  hope  of  redress  by  separate 
applications  appeared  desperate,  there  was  con- 
ceived the  noble  idea,  which  laid  the  foundation 
of  the  present  independence  and  happiness  of 
this  country,  (though  independence  was  not 
then  in  contemplation,)  of  forming  a  common 
council  to  consult  for  the  common  welfare  of 
the  whole,  so  far  as  an  opposition  to  the  meas- 
ures of  Great  Britain  was  concerned.  .  .  .  Each 
province  appointed  as  many  or  as  few  deputies 
as  it  pleased,  at  its  own  discretion,  which  was 
not  objected  to,  because  the  members  of  Congress 
did  not  vote  individually,  but  the  vote^  given  in 
Congress  were  by  provinces,  as  they  afterwards 
were,  (subsequent  to  the  Declaration  of  Indepen- 
dence, and  until  the  present  Constitution  of  the 
United  States  was  formed,)  by  States.  The 
powers  of  Congress,  at  first,  were  indeed  little 
more  than  advisory ;  but,  in  proportion  as  the 
danger  increased,  their  powers  were  gradually 
enlarged,  either  by  express  grant,  or  by  implica- 
tion arising  from  a  kind  of  indefinite  authority, 
suited  to  the  unknown  exigencies  that  might 
arise.  That  an  undefined  authority  is  danger- 
ous, and  ought  to  be  intrusted  as  cautiously  as 


NOTES    UPON    LECTURE    II.  125 

possible,  every  man  must  admit ;  and  none  could  lecture  ii. 
take  more  pains  than  Cono-ress  for  a  lono;  time  ^*^'^'""  °^  *^® 

i  o  o  Supreme  Court  on 

did,  to  get  their  authority  regularly  defined  by  the  judgments  of 
a  ratification  of  the  Articles  of  Confederation,  ofuie couiedera- 
But  that,  previously  thereto,  they  did  exercise,  tio°- 
with  the  acquiescence  of  the  States,  high  powers 
of  what  I  may,  perhaps,  with  propriety,  for  dis- 
tinction call  external  sovereignty  is  unques- 
tionable. .  .  .  Whether  among  these  powers 
comprehended  within  their  general  authority, 
was  that  of  instituting  courts  for  the  trial  of  all 
prize  causes,  was  a  great  and  awful  question ; 
a  question  that  demanded  deep  consideration, 
and  not  perhaps  susceptible  of  an  easy  decision. 
That  in  point  of  prudence  and  propriety,  it 
was  a  power  most  fit  for  Congress  to  exercise,  I 
have  no  doubt.  I  think  all  prize  causes  whatso- 
ever ought  to  belong  to  the  national  sovereignty. 
.  .  .  This  is  a  consideration  of  no  small  weight 
to  induce  an  inference  that  they  actually  pos- 
sessed it  when  their  powers  were  so  indefinite, 
and  when  it  seems  to  have  been  the  sense  of  all 
the  States  that  Congress  should  possess  all  the 
incidents  to  external  sovereignty." 

Mr.  Justice  Blair  said  :  "  The  immediate  ques- 
tion is,  whether  Congress  had  a  right  to  exercise, 
by  themselves,  by  their  committees,  or  by  any  reg- 
ular court  of  appeals  by  them  erected,  an  appellate 
jurisdiction,  to  affirm  or  reverse  a  sentence  of  a 
State  court  of  admiralty,  in  a  question  whether 
prize  or  no  prize.  If  they  possessed  such  an 
authority,  it  must  be  derivative,  and  its  source, 
either  mediately  or  immediately,  the  will  of  the 


126  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  ii.  people.  Usurpation  can  give  no  right.  .  .  . 
suprlt Court ou  They  raised  an  army;  they  appointed  a  com- 
the  judgments  of  mander-in-chief  with  other  general  and  field  of- 
of'tbe  Confedera-  ficcrs ;  they  modelled  the  army,  disposed  of  the 
*^°°-  troops,  emitted  bills  of  credit,  pledged  the  con- 

federated Colonies  for  the  redemption  of  them, 
and,  in  short,  acted  in  all  respects  like  a  body 
completely  armed  with  all  the  powers  of  war; 
and  at  all  this  I  find  not  the  least  symptom  of 
discontent  among  all  the  confederated  States, 
or  the  whole  people  of  America ;  on  the  contrary, 
Congress  were  universally  revered,  and  looked 
up  to  as  our  political  fathers  and  the  saviours 
of  their  country.  ...  I  am  therefore  of  opin- 
ion that  those  acts  of  New  Hampshire  which 
restrain  the  jurisdiction  of  Congress,  being  con- 
trary to  the  legitimate  powers  of  Congress,  can 
have  no  binding  force ;  and  that,  under  the 
authority  of  Congress,  an  appeal  will  lay  from 
the  courts  of  admiralty  of  that  State  to  the  court 
of  Commissioners  of  Appeals." 

Mr.  Justice  Cushing  said :  "  I  concur  with  the 
rest  of  the  court,  that  the  Court  of  Appeals, 
being  a  court  under  the  Confederation  of  1781 
of  all  the  States,  and  being  a  court  for  '  deter- 
mining finally  appeals  in  all  cases  of  capture,' 
and  so  being  the  highest  court,  the  dernier  resort 
of  all  such  cases,  their  decision  upon  the  juris- 
diction and  upon  the  merits  of  the  cause,  having 
heard  the  parties  by  their  counsel,  must  be  final 
and  conclusive.  ...  As  to  the  original  ques- 
tion of  the  powers  of  Congress  respecting  cap- 
tures ...  I  have  no  doubt  of  the  sovereignty 


NOTES    UPON    LECTUKE    II.  127 

of  the  States,  saving  the  powers  delegated  to  lectoke  ii. 
Congress,  being  such  as  were  ^  proper  and  neces-  s^p^eleCoLo,, 
sary  '  to  carry  on,  unitedly,  the  common  defence  tiie  judgments  of 

■  1  J.1      i  1  •       1      . 1   •     the  Pi'ize  CourUi 

m  the  open  war  that  was  waged  agamst  this  ^f  the  coufedera- 
country,  and  in  support  of  their  liberties,  to  the  *^""- 
end  of  the  contest." 

As  we  have  already  seen,^  this  unanimous 
ruling,  although  the  different  judges  reached 
their  conclusions  by  different  methods  of  reason- 
ing, was  followed  by  the  court  fourteen  years 
later,  Mr.  Chief  Justice  Marshall  giving  the 
opinion.^ 

Thus  it  was  determined,  as  an  historic  fact, 
that  in  1779  Congress  had  the  power  to  create  a 
Prize  Court  with  jurisdiction  over  judgments  of 
State  courts,  even  in  violation  of  the  laws  of 
a  State,  provided  the  subject  of  the  judgment 
was  national  in  character;  and  that  rights  of 
property  acquired  under  this  legislation  were  to 
be  upheld  by  courts  of  the  United  States  exist- 
ing under  the  Constitution,  and  to  be  protected 
by  its  civil  authorities.  The  court  practically 
adopted  the  language  of  the  Resolutions  of  Con- 
gress passed  in  1779,  at  a  time  when  no  power 
had  been  conferred  upon  it  by  a  written  instru- 
ment, that  "  Congress  or  such  person  or  persons 
as  they  appoint "  "  have  iiecessarily  the  power  " 
to  exercise  full  appellate  jurisdiction  in  such 
cases,  and  that  "  no  act  of  any  one  State  can  or 
ought  to  destroy  "  it.     Here  was  first  announced. 


1  See  ante.,  p.  46. 

2  United  States  v.  Peters,  5  Cranch,  115. 


128  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  il  and  in  tliG  most  concrete  form,  that  doctrine  of 
sirreme^court  on  ii^^pli^d  powers,  wliicli  luis  had  so  great  irilluence 
the  judgments  of  in  shaping  the  destinies  of  the  United  States. 

the  Prize  Courts 
of  the  Confedera- 

*'*"*•  2.    The  Acquisition  of  Louisiana. 

Acquisition  of  Mr.    Jefferson,  under   whom   the    acquisition 

Louisiana.  ^^^^  made,  held   views   on   its  constitutionaUty 

which  are  well  known.  He  said  :  "  This  treaty 
must,  of  course,  be  laid  before  both  Houses,  be- 
cause they  have  important  functions  to  exercise 
respecting  it.  They,  I  presume,  will  see  their 
duty  to  their  country  in  ratifying  and  paying 
for  it,  so  as  to  secure  a  good  which  would  other- 
wise probably  be  never  again  in  their  power. 
But  I  suppose  they  must  then  appeal  to  tlie  na- 
tion for  an  additional  article  to  the  Constitu- 
tion, approving  and  confirming  an  act  which  the 
nation  had  not  previously  authorized.  The  Con- 
stitution has  made  no  provision  for  our  holding 
foreign  territory,  still  less  for  incorporating  for- 
eign nations  into  our  Union.  The  Executive,  in 
seizing  the  fugitive  occurrence  which  so  much 
advances  the  good  of  their  country,  have  done 
an  act  beyond  the  Constitution."^ 

On  the  30th  of  the  same  month  he  wrote 
to  Mr.  Lincoln,  the  Attorney  General,  who  had 
given  an  opinion  favorable  to  the  constitution- 
ality of  the  measure,  that  "  the  less  that  is  said 
about  any  constitutional  difficulty  the  better. 
Congress  should  do  what  is  necessary  in  silence. 

1  Jefferson  to  Breckenridge,  August  12,  1803.  4  Jefferson's 
Works,  500. 


NOTES    UPON   LECTURE   II.  129 

I  find   but  one   opinion  as  to  the  necessity  of  lecture  ii. 
shutting  up  the  country  for  some  time."  '  tl^^^  °^ 

Mr.  Gallatin,  however,  who  was  the  Secretary 
of  the  Treasury  at  that  time,  was  of  a  different 
opinion.  He  said :  "  Does  any  constitutional 
objection  really  exist?  ...  To  me  it  would 
appear,  (1)  that  the  United  States,  as  a  nation, 
have  an  inherent  right  to  acquire  territory ;  (2) 
that  whenever  that  acquisition  is  by  treaty,  the 
same  constituted  authorities,  in  whom  the  treaty- 
making  power  is  vested,  have  a  constitutional 
right  to  sanction  the  acquisition."^ 

The  average  view  of  the  Federalists  is  prob- 
ably expressed  by  Josiah  Quincy,  then  a  member 
of  Congress :  "  The  clause  in  the  Constitution 
giving  the  power  to  Congress  to  admit  into  the 
Union  other  States,  had  unquestionably  sole  ref- 
erence to  the  admission  of  States  within  the 
limits  of  the  original  territory  of  the  United 
States.  No  original  document,  argument,  or 
treatise,  at  the  time  of  the  formation  of  the 
Constitution,  can  be  adduced  to  give  color  to 
the  opinion  that  it  was  intended  to  extend  to 
territories  then  belonging  to  foreign  powers,  be- 
yond the  limits  of  the  original  thirteen  States. 
Mr.  Jeiferson  himself  was  so  convinced  of  this 
fact,  that  he  declared,  previous  to  the  purchase 
of  Louisiana,  that  it  could  not  be  done,  except 
by  receiving  the  sanction  of  the  several  States, 
without  a  violation  of  the  Constitution.  .  .  . 

1  4  Jefferson's  Works,  505. 

^  Gallatin  to  Jefferson,  January  13,  1803.  1  Gallatin's  Works, 
112. 


130  LECTURES    ON    CONSTITUTIONAL    LAW. 

),K«:ruRK  II.  "  Notwithstanding  the  perfect  conviction  of  his 

Acquisition  of      ^^^    mind    on   this  point,  as  he  unequivocally 

Louisiana.  ^  ^  .  "^ 

declared  (a  fact  well  known  at  that  time  and 
subsequently  publicly  demonstrated),  he  yielded 
to  the  solicitations  and  influence  of  his  parti- 
sans, silenced  his  conscientious  scruples,  and, 
holding  in  his  hand  the  omnipotence  of  the  pres- 
ent party  power,  consented  to  give  his  sanction 
to  the  violation  of  the  Constitution  by  admit- 
ting Louisiana  into  the  Union,  without  receiv- 
ing or  asking  the  consent  of  the  several  States."  ^ 

Congress  adopted  Mr.  Gallatin's  theory  of 
construction  rather  than  that  of  Mr.  Jefferson 
and  Mr.  Quincy.  On  the  31st  October,  1803,^ 
it  authorized  the  President  to  take  possession 
of  the  ceded  territory,  and  extended  the  laws  of 
the  United  States  over  it ;  on  the  20th  February, 
1811,^  it  passed  an  enabling  act,  under  which 
Louisiana  was,  on  the  8th  April,  1812,  admitted 
into  the  Union.*  This  treaty,  and  these  laws, 
and  individual  rights  created  under  them,  have 
been  recognized  by  the  Supreme  Court.^ 

In  thus  construing  the  Constitution,  the  states- 
men of  1802  only  followed  in  the  footsteps  of 
the  statesmen  of  1787,  ^vho  accepted  the  cession 

1  Life  of  Josiah  Quincy,  91. 

2  2  Stat.  245.  a  2  Stat.  041.  *  2  Stat.  701. 

^  Mahew  v.  Thatcher,  0  Wheat.  120  ;,  Soulard  v.  United,  States, 
4  Pet.  511  ;  Livingston  v.  Stm-y,  9  Pet.  6.32  ;  Livingston  v.  Story, 
11  Pet.  351  ;  Story  v.  Livingston,  13  Pet.  359  ;  United  States  v. 
D'Auterive,  10  How.  009  ;  Mnntault  v.   United  States,  12  How.  47  ; 

United  States  v.  Rilllenx,  14  How.  189  ;  United  States  v.  King, 
7  How.  833;   United  States  v.   Tnrner,  11   How.  003;  Mackey  v. 

United  States,  10  Pet.  340  ;  Pollard  v.  Files,  2  How.  591 ;  Foster 
V.  Neilson,  2  Pet.  253. 


NOTES    UPON    LECTURE    II.  131 

of  the  Northwest  Territory.     The  question  and  i.kctukk  ii. 
the  doubt  with  Louisiana  ^i^rew  out  of  the  silence  f '''i"'."'*'""  «' 

^  Louisiana. 

of  the  Constitution ;  but  the  Articles  of  Con- 
federation were  equally  silent.  Nor  could  the 
fact  that,  in  the  one  case,  the  cession  was  made 
by  mdividual  States  of  the  Union,  and,  in  the 
other,  by  a  Foreign  Power,  affect  the  nature  of 
the  constitutional  question.  In  the  one  case 
Congress,  and  in  the  other  the  Executive,  as- 
sumed that  the  power  of  such  acquisition  was 
impliedly  given  to  a  sovereign,  though  not  in 
terms  delegated ;  and  in  each  case  the  action 
has  been  approved  by  the  people  and  sustained 
by  the  courts. 

The  acquisition  of  Florida^  followed  that  of 
Louisiana.  Texas  came  next,  but  by  a  different 
process.  It  was  admitted  as  a  State  while  still 
foreign  territory.^  The  cession  of  California  ^ 
by  treaty,  and  then  of  Alaska  *  followed.  Mean- 
while a  treaty  of  the  United  States  gave  to 
Great  Britain^  a  tract  of  territory  claimed  by 
the  State  of  Maine ;  and  another  treaty  gave  to 
the  same  power  ^  a  large  tract  claimed  by  the 
United  States  in  the  Northwest  and  on  the 
shores  of  the  Pacific. 

In  American  Insurance  Co.  v.  Canter^  Chief 
Justice  Marshall,  delivering  the  opinion  of  the 
— — —  # 

1  Treaty  of  Februarj^  22,  1819,  with  Spain.     8  Stat.  252. 

2  5  Stat.  797. 

8  Treaty  with  Mexico,  February  2,  1848.     9  Stat.  922. 

*  Treaty  with  Russia,  March  m,  1867.     15  Stat.  539. 

6  Treaty  with  Great  Britain,  August  9,  1812.     8  Stat.  572. 

6  Treaty  with  Great  Britain,  June  15,  1846.     9  Stat.  869. 

7  1  Pet.  511,  542. 


132 


LECTURES    ON    CONSTITUTIONAL    LAW. 


LeC  TUKE  II. 

Acquisition  of 
Louisiana. 


court,  said :  "  The  Constitution  confers  absolutely 
on  the  Government  of  the  Union,  the  powers 
of  making  war  and  of  making  treaties ;  conse- 
quently that  Government  possesses  the  power 
of  acquiring  territory,  either  by  conquest  or  by 
treaty.  The  usage  of  the  world  is,  if  a  nation 
be  not  entirely  subdued,  to  consider  the  holding 
of  conquered  territory  as  a  mere  military  occu- 
pation, until  its  fate  shall  be  determined  at  the 
treaty  of  peace.  If  it  be  ceded  by  the  treaty, 
the  acquisition  is  confirmed,  and  the  ceded  ter- 
ritory becomes  a  part  of  the  nation  to  which  it 
is  annexed.  .  .  .  The  same  act  which  transfers 
their  country,  transfers  the  allegiance  of  those 
who  remain  in  it." 


Admiralty  juris- 
diction over  in- 
terior waters. 


3.   Extension  of  the   Admiralty  Jurisdiction  of 
the  Courts  of  the  United  States. 

The  second  section  of  the  Third  Article  of  the 
Constitution  provides  that  the  judicial  power 
shall  extend  "  to  all  cases  of  admiralty  and  mari- 
time jurisdiction." 

The  Supreme  Court  has  held  that  this  lan- 
guage referred  to  the  general  system  of  mari- 
time law  which  was  familiar  to  the  lawyers  and 
statesmen  of  the  country  when  the  Constitution 
was  adopted.^  In  an  early  case,  admiralty  juris- 
diction was  invoked  in  Kentucky,  to  enforce  a 
claim  of  a  hand  for  wages  earned  on  a  steam- 
boat running  from  a  port  in  Kentucky  up  the 
river   Missouri ;    but  the   court  said :  ''  In   the 


^  The  Lottawanna,  21  Wall.  558. 


NOTES    UPON    LECTURE    II.  133 

great  struggles  between  the  courts  of  the  com-  lecturk  it. 

mon  hiw  and  the  admiralty,  the   latter   never  t''"'"""^' '"•''■'■ 

J '  diction  over  in- 

attempted  to  assert  any  jurisdiction  except  over  terior  wuters. 

maritime  contracts ;  .  .  .  nor  could  it  rightfully 
exercise  any  jurisdiction,  except  in  cases  where 
the  service  was  substantially  performed,  or  to  be 
performed,  upon  the  sea,  or  u^^on  waters  within 
the  ebb  and  flow  of  the  tide.^  This  was  affirmed 
and  reasserted  by  the  court.^  And  it  can  hardly 
admit  of  a  doubt  that  the  framers  of  the  Con- 
stitution by  the  term  '  admiralty,'  understood 
admiralty  as  its  jurisdiction  was  defined  by  Eng- 
lish law ;  and  that  the  adjective  '  maritime ' 
related  to  tidal  waters." 

As  the  commerce  of  the  lakes  and  internal 
rivers  expanded,  it  was  found  that  the  admiralty 
and  maritime  jurisdiction  as  thus  settled  and 
defined,  did  not  meet  the  necessities  of  the 
country.  Congress  accordingly,  on  the  26th  of 
February,  1845,  passed  an  act  "  extending  the 
jurisdiction  of  the  District  Courts  to  certain 
cases  upon  the  lakes  and  navigable  waters  con- 
necting the  same."^  The  court,  at  December 
Term,  1851,  held  this  statute  to  be  within  the 
constitutional  power  of  Congress."*  It  said, 
among  other  things  :  "  The  only  objection  made 
to  this  jurisdiction  is  that  there  is  no  tide  in  the 
lakes  or  the  waters  connecting  them  ;  and  it  is 
said  that  the  admiralty  and  maritime  jurisdic- 


1  The  Thnmns  Jefferson,  10  Wheat.  428. 

2  American  Ins.  Co.  v.  Canter,  1  Pet.  511  ;   The  Orleans,  11  Pet. 
175  ;   United  States  v.  Coombs,  12  Pet.  72. 

3  5  Stat.  726,  c.  20.  •*  The  Genesee  Chief,  12  How.  443. 


134 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lkcturk  II. 
Admiralty  juiij- 
dictioii  ovHi-  in- 
terior waters. 


tion  as  known  and  understood  in  England  and 
this  country  at  the  time  the  Constitution  was 
adopted,  was  confined  to  the  ebb  and  flow  of  the 
tide.  ...  In  England,  undoubtedly,  the  writers 
upon  the  subject,  and  the  decisions  in  its  courts 
of  admiralty,  always  speak  of  the  jurisdiction  as 
confined  to  tide  water.  ...  At  the  time  the 
Constitution  of  the  United  States  was  adopted, 
and  our  courts  of  admiralty  went  into  operation, 
the  definition  which  had  been  adopted  in  Eng- 
land was  equally  proper  here.  In  the  old  thir- 
teen States,  the  far  greater  part  of  the  navigable 
waters  are  tide  waters.  ...  It  is  evident  that 
a  definition  that  would  at  this  day  limit  public 
rivers  in  this  country  to  tide-water  rivers  is 
utterly  inadmissible.  .  .  .  The  lakes  and  the 
waters  connecting  them  are  undoubtedly  public 
waters,  and  we  think  are  within  the  grant  of 
admiralty  and  maritime  jurisdiction  in  the  Con- 
stitution of  the  United  States." 

Twenty-two  years  later  the  court,  speaking  of 
this,  said  that  the  court  had  "  felt  itself  at  lib- 
erty to  recognize  the  admiralty  jurisdiction  as 
extending  to  localities  and  subjects  which  were 
prohibited  to  it  in  England,  but  which  fairly 
belong  to  it  on  every  ground  of  reason  when 
applied  to  the  peculiar  circumstances  of  this 
country."^  The  most  extreme  States'  right  theo- 
rist cannot  doubt  that  this  decision  was  in  ac- 
cordance with  the  true  interests  —  it  is  not  too 
strong  to  say  the  absolute  necessities  —  of  the 
nation. 


1  The  Lottawanna,  21  Wall.  558. 


NOTES    UPON    LECTURE    II.  lo5 

4.   The  Legal   Tender  Decisions. 

By  the  act  of  February  25,  1862,  12  Stat,  lecturk  ii. 
345,  c.  33 ;  the  joint  resolution  of  January  17,  deSLar^ 
1863,  12  Stat.  822 ;  and  the  act  of  March  3, 
1863, 12  Stat.  709,  c.  73,  all  passed  during  the  civil 
war.  Congress  made  provisions  for  issues  of  the 
notes  of  the  United  States,  to  be  a  legal  tender, 
receivable  in  payment  of  private  debts.  It  was 
further  provided  that  these  notes,  as  they  should 
come  into  the  treasury,  might  be  reissued  from 
time  to  time,  and,  if  mutilated  so  as  to  be  unfit 
for  use,  might  be  replaced  by  a  new  issue. 

At  December  Term,  1869,  this  provision  was 
pronounced  to  be  unconstitutional  by  a  majority 
of  the  court.^  The  opinion  was  delivered  by  Chief 
Justice  Chase,  Justices  Nelson,  Clifford,  and  Field 
concurring  in  the  opinion  and  judgment,  and 
Justice  Grier  concurring  in  the  judgment.  Jus- 
tice Miller  delivered  a  dissenting  opinion,  in 
which  Justices  Swayne  and  Davis  concurred. 

The  majority  did  not  doubt  the  power  to  issue 
notes  which  should  become  a  currency  in  circu- 
lation :  its  doubt  was  "  as  to  the  power  to  declare 
a  particular  class  of  these  notes  to  be  a  legal 
tender  in  payment  of  preexisting  debts."  On 
this  point  they  said :  "  We  confess  ourselves 
unable  to  perceive  any  solid  distinction  between 
such  an  act  and  an  act  compelling  all  citizens  to 
accept,  in  satisfaction  of  all  contracts  for  money, 
half,  or  three-quarters,  or  any  other  proportion 
less  than  the  whole,  of  the  value  actually  due 

1  Hepburn  v.  Grisioold,  8  Wall.  603. 


136 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  II. 
Legal  tender 
decisions. 


according  to  their  terms.  It  is  difficult  to  con- 
ceive what  act  would  take  private  property  with- 
out process  of  law  if  such  an  act  would  not. 
We  are  oljliged  to  conclude  that  an  act  making 
mere  promises  to  pay  dollars,  a  legal  tender  in 
payment  of  debts  previously  contracted,  is  not  a 
means  appropriate,  j^hiiiily  adapted,  really  calcu- 
lated to  carry  into  effect  any  express  power 
vested  in  Congress ;  that  such  an  act  is  incon- 
sistent with  the  spirit  of  the  Constitution,  and 
that  it  is  prohibited  by  the  Constitution." 

The  dissenting  opinion  said :  "  The  legal  ten- 
der clauses  of  the  statutes  under  consideration 
were  placed  emphatically,  by  those  who  enacted 
them,  upon  their  necessity  to  the  further  bor- 
rowing of  money  and  maintaining  the  army  and 
navy.  .  .  .  The  history  of  that  gloomy  time, 
not  to  be  readily  forgotten  by  the  lover  of  his 
country,  will  forever  remain,  the  full,  clear,  and 
ample  vindication  of  the  exercise  of  this  power 
by  Congress.  .  .  .  Undoubtedly  it  is  a  law  im- 
pairing the  obligation  of  contracts  made  before 
its  passage ;  but,  while  the  Constitution  forbids 
States  to  pass  such  laws,  it  does  not  forbid  Con- 
gress." 

At  December  Term,  1870,  the  question  came 
again  before  the  court,^  when  the  decision  in 
Heiiiburn  v.  Griswold  was  reversed.  The  opinion 
of  the  court,  concurred  in  by  Justices  Swayne, 
Davis,  and  Miller,  was  delivered  by  Mr.  Justice 
Strong.     Mr.  Justice  Bradley  delivered  a  concur- 


1  Knox  V.  Lee,  12  Wall.  457. 


NOTES    UPON    LECTURE    II.  137 


ring  opinion.     Chief  Justice  Chase  delivered  a  lectubb  n 

Legal  ten " 
decisious 


dissenting  opinion  in  which  Justice  Nelson  con-  ^^^^  tender 


curred.  Justice  Clifford  and  Justice  Field  each 
delivered  a  dissenting  opinion. 

The  question  was  again  before  the  court  at 
December  Term,  1883,  when  the  decision  in 
Knox  V.  Lee  was  reaffirmed,  Justice  Field  being 
the  only  dissenting  judge.^ 

By  an  act  passed  in  1875,  "to  provide  for  the 
resumption  of  specie  payments,"^  Congress  had 
directed  that  these  notes  as  retired  should  be 
cancelled.  By  the  act  of  May  31,  1878,^  it  ter- 
minated such  retirement,  and  directed  the  reissue 
of  such  notes  when  paid  into  the  treasury.  The 
court,  in  its  opinion,  delivered  by  Justice  Gray, 
Justice  Field  only  dissenting,  said :  "  A  consti- 
tution, establishing  a  frame  of  government,  de- 
claring fundamental  principles,  and  creating  a 
national  sovereignty,  and  intended  to  endure 
for  ages  and  to  be  adapted  to  the  various  crises 
of  human  affairs,  is  not  to  be  interpreted  with 
the  strictness  of  a  private  contract.  The  Consti- 
tution of  the  United  States,  by  apt  words  of 
designation  or  general  description,  marks  the 
outlines  of  the  powers  granted  to  the  national 
Legislature ;  but  it  does  not  undertake,  with  the 
precision  and  detail  of  a  code  of  laws,  to  enu- 
merate the  subdivision  of  those  powers,  or  to 
specify  all  the  means  by  which  they  may  be 
carried    into    execution.  .  .  .     The    words    'to 

1  Legal  Tender  Cases,  110  U.  S.  421. 

2  18  Stat.  296,  c.  15. 
8  20  Stat.  87,  c.  146. 


138  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkcturk  II.        borrow  money/  as  used  in  the  Constitution,  to 
Le-ai  tender        desiirnate  a  Dower  vested  in  tlie  National  Gov- 

decisions.  o  i 

eminent,  for  the  safety  and  welfare  of  the  whole 
people,  are  not  to  receive  that  limited  and  re- 
stricted interpretation  and  meaning  which  they 
would  have  in  a  penal  statute,  or  in  an  authority 
conferred,  by  law  or  by  contract,  upon  trustees 
or  agents  for  private  purposes.  .  .  .  Congress 
has  the  power  to  issue  the  obligations  of  the 
United  States  in  such  form,  and  to  impress  upon 
them  such  qualities  as  currency  for  the  purchase 
of  merchandise  and  the  payment  of  debts,  as 
accord  with  the  usage  of  sovereign  governments. 
The  power,  as  incident  to  the  power  of  borrow- 
ing money  and  issuing  bills  or  notes  of  the  Gov- 
ernment for  money  borrowed,  of  impressing 
upon  those  bills  or  notes  the  quality  of  being 
a  legal  tender  for  the  payment  of  private  debts, 
was  a  power  universally  understood  to  belong  to 
sovereignty,  in  Europe  and  America,  at  the  time 
of  the  framing  and  adoption  of  the  Constitution 
of  the  United  States.  The  governments  of 
Europe,  acting  through  the  monarch  or  the  leg- 
islature, according  to  the  distribution  of  powers 
under  their  respective  constitutions,  had  and 
have  as  sovereign  a  power  of  issuing  paper 
money  as  of  stamping  coin." 

Although  this  carefully  considered  decision 
put  at  rest  further  judicial  discussion  of  the 
question,  it  has  not  passed  unquestioned  by 
those  who  deny  that  the  Constitution  gives  such 
a  power  to  Congress.  The  opponents  put  their 
case  on  the  ground  that  the  question  was  directly 


NOTES    UPON    LECTURE    II.  l'6\i 

before  the  Convention  and  fully  discussed  there ;  lecturk  ii. 
and  that  the  Convention,  with   full   knowledcre 'r*'^.^' '""•*«' 

'  o     decisions. 

of  what  it  was  doing,  refused  to  grant  the  power 
to  Congress.  Consequently,  they  say,  no  such 
power  can  be  implied.  This  contention  is  main- 
tained by  Mr.  Bancroft  in  a  pamphlet  entitled 
"  A  Plea  for  the  Constitution,"  published  in 
1886,  the  latest  original  work  of  his  long  life. 
He  sums  up  the  historical  argument  thus :  — 

"  Madison,  agreeing  with  the  journal  of  the 
convention,  records  that  the  grant  of  power  to 
emit  bills  of  credit  was  refused  by  a  majority  of 
more  than  four  to  one.  Eleven  men  took  part 
in  the  discussion ;  and  every  one  of  the  eleven, 
w^hether  he  spoke  for  or  against  the  grant  of 
the  power,  Gouverneur  Morris,  Pierce  Butler, 
James  Madison,  Nathaniel  Gorham,  George 
Mason,  John  F.  Mercer,  Oliver  Ellsworth,  Ed- 
mund Randolph,  James  Wilson,  George  Reed, 
and  John  Langdon,  each  and  all,  understood  the 
vote  to  be  a  denial  to  the  Legislature  of  the 
United  States  of  the  power  to  emit  paper 
money.  .  .  .  The  evidence  is  perfect ;  no  power 
to  emit  paper  money  was  granted  to  the  Legis- 
lature of  the  United  States. 

"  By  refusing  to  the  United  States  the  power 
of  issuing  bills  of  credit,  the  victory  over  paper 
money  was  but  half  complete.  The  same  James 
Wilson  who,  twelve  days  before,  with  Oliver 
Ellsworth  had  taken  a  chief  part  in  refusing  to 
the  United  States  the  power  to  emit  paper 
money,  and  the  same  Roger  Sherman  who,  in 
1752,  had  put  forth  all  his  energy  to  break  up 


140  LECTURES    ON    CONSTITUTIONAL   LAW. 

Lecture  II.        paper  money  in  Connecticut,  jointly  took  the 
Legal  tender        j     j      r^.j^^  f.^^^.   j^.^£^  ^f  ^j^^   Constitution  had 

decisions. 

forbidden  the  States  to  emit  bills  of  credit  with- 
out the  consent  of  the  Legislature  of  the  United 
States ;  on  the  28th  of  August  they  jointly 
offered  this  motion :  '  No  State  shall  coin  money, 
nor  emit  Jjills  of  credit,  nor  make  anything  but 
gold  and  silver  coin  a  tender  in  payment  of 
debts,'  making  the  prohibition  absolute.  Roger 
Sherman,  animated  by  zeal  for  the  welfare  of 
the  coming  republic  of  countless  millions,  ex- 
claims in  the  debate :  ^  This  is  the  favorable 
crisis  for  crushing  paper  money.'  His  word 
was  the  will  of  the  convention,  and  the  States, 
by  a  majority  of  eight  and  a  half  against  one 
and  a  half  —  that  is,  by  more  than  five  to  one  — 
forbade  the  State,  under  any  circumstances,  to 
emit  bills  of  credit.  This  is  the  way  in  which 
our  Constitution  shut  and  barred  the  door  against 
paper  money,  and  crushed  it. 

"  Nothing  is  wanting  to  the  perfect  strength 
of  the  truth  that  the  Constitution  put  an  end  to 
paper  money  in  all  the  United  States,  and  in  all 
the  several  States." 

It  is  of  little  consequence,  however,  on  which 
side  the  truth  of  this  historical  issue  lies.  The 
court  of  final  resort  has  settled  that  this  great 
power  exists  in  Congress,  not  by  special  grant, 
but  as  a  necessary  adjunct  of  sovereignty;  just 
as  the  Congress  of  the  Confederation,  and  the 
Supreme  Court  held  as  to  Prize  Courts.  This 
has  been  done  after  a  fluctuation  of  opinion, 
running  through  a  series  of  years.     If  judicial 


NOTES   UPON   LECTURE   II.  141 


determination   of   a  question,    over   which   the  lecture  ii. 

Lefjal  teni 
decisions. 


court  has  jurisdiction,  is  to  have  any  weight,  ^"^^''^^  **°*^^'^ 


the  point  must  be  regarded  as  settled.  Those 
who  are  opposed  to  the  issue  of  such  paper  must 
endeavor  to  convert  Congress  to  their  way  of 
thinking. 

The  Supreme  Court  has  often  had  occasion  to  impUed  powers, 
consider  the  subject  of  these  implied  powers. 
Its  decisions,  as  a  whole,  are  substantially  in 
harmony  with  each  other.  In  the  opinion  of 
Chief  Justice  Marshall  in  McCidloch  v.  Mary- 
land, it  is  said  :  — 

"  This  Government  is  acknowledged  by  all  to 
be  one  of  enumerated  powers.  The  principle 
that  it  can  exercise  only  the  powers  granted  to 
it,  would  seem  too  apparent  to  have  required  to 
be  enforced  by  all  those  arguments,  which  its 
enlightened  friends,  while  it  was  depending  be- 
fore the  people,  found  it  necessary  to  urge ;  that 
principle  is  now  universally  admitted.  But  the 
question  respecting  the  extent  of  the  powers 
actually  granted,  is  perpetually  arising,  and  will 
probably  continue  to  arise,  so  long  as  our  system 
shall  exist.  In  discussing  these  questions,  the 
conflicting  powers  of  the  General  and  State  gov- 
ernments must  be  brought  into  view,  and  the 
supremacy  of  their  respective  laws,  when  they 
are  in  opposition,  must  be  settled. 

"  If  any  one  proposition  could  command  the 
universal  assent  of  mankind,  we  might  expect  it 
would  be  this,  that  the  Government  of  the  Union, 
though  limited  in  its  powers,  is  supreme  within 
its  sphere  of  action.     This  would  seem  to  result, 


142  LECTURES    ON    CONSTITUTIONAL    LAW. 

lectdrk  II.        necessarily,  from  its  nature.     It  is  the  govern- 
mpie  powers.    ^^^^^  ^£  ^|| .  '^.g  powers  are  delegated  by  all;  it 

represents  all,  and  acts  for  all.  Though  any  one 
State  may  be  willing  to  control  its  operations,  no 
State  is  willing  to  allow  others  to  control  them. 
The  nation,  on  those  sul)jects  on  which  it  can  act, 
must  necessarily  bind  its  component  parts." 

"  We  admit,  as  all  must  admit,  that  the 
powers  of  the  Government  are  limited,  and  that 
its  limits  are  not  to  be  transcended.  But  we 
think  the  sound  construction  of  the  Constitution 
must  allow  to  the  national  legislature  that  dis- 
cretion, with  respect  to  the  means  by  which  the 
powers  it  confers  are  to  be  carried  into  execu- 
tion, which  will  enable  that  body  to  perform  the 
high  duties  assigned  to  it  in  the  manner  most 
beneficial  to  the  people.  Let  the  end  be  legiti- 
mate, let  it  be  within  the  scope  of  the  Constitu- 
tion, and  all  means  which  are  appropriate,  which 
are  plainly  adapted  to  that  end,  which  are  not 
prohibited,  but  consist  with  the  letter  and  spirit 
of  the  Constitution,  are  constitutional."  ^ 

In  Hejjburn  v.  Griswold,  Chief  Justice  Chase, 
referring  to  these  words  of  Chief  Justice  Mar- 
shall, said  :  "  The  rule  for  determining  whether 
a  legislative  enactment  can  be  supported  as  an 
exercise  of  an  implied  power,  was  stated  by 
Chief  Justice  Marshall,  speaking  for  the  whole 
court  in  the  case  of  McCuIIoch  v.  The  State  of 
Maryland,  and  the  statement  then  made  has 
ever  since  been  accepted  as  a  correct  exposition 

1  McCuUoch  V.  Maryland,  4  Wheat.  316,  405,  421. 


notp:s  upon  lecture  ii.  14r> 

of  the  Constitution.  His  words  were  these  :  lkptdre  n. 
'  Let  the  end  be  legitimate,  let  it  be  within  the  "'^^  '^'  p*'^^"* 
scope  of  the  Constitution,  and  all  means  which 
are  appropriate,  which  are  plainly  adapted  to 
that  end,  which  are  not  prohibited,  but  consist 
with  the  letter  and  spirit  of  the  Constitution, 
are  constitutional.'  And,  in  another  part  of 
the  same  opinion,  the  practical  application  of 
this  rule  was  thus  illustrated.  '  Should  Con- 
gress, in  the  execution  of  its  powers,  adopt 
measures  which  are  prohibited  by  the  Con- 
stitution, or  should  Congress,  under  the  pretext 
of  executing  its  powers,  pass  laws  for  the  accom-  . 
plishment  of  objects  not  intrusted  to  the  Gov- 
ernment, it  would  be  the  painful  duty  of  this 
tribunal,  should  a  case  requiring  such  a  decision 
come  before  it,  to  say  that  such  an  act  was  not 
the  law  of  the  land.  But  where  the  laAv  is  not 
prohibited,  and  is  truly  calculated  to  effect  any 
of  the  objects  intrusted  to  the  Government,  to 
undertake  here  to  inquire  the  degree  of  its  neces- 
sity, would  be  to  pass  the  line  which  circum- 
scribes the  judicial  department,  and  tread  on 
legislative  ground.' 

"  It  must  bo  taken,  then,  as  finally  settled,  so 
far  as  judicial  decisions  can  settle  anything, 
that  the  words,  '  all  laws  necessary  and  proper 
for  carrying  into  execution,'  powers  expressly 
granted,  or  vested,  have,  in  the  Constitution,  a 
sense  equivalent  to  that  of  the  words,  laws,  not 
absolutely  necessary,  indeed,  but  appropriate, 
plainly  adapted  to  constitutional  and  legitimate 
ends ;  laws  not  prohibited,  but  consistent  with 


144  LECTUKES    ON    CONSTITUTIONAL    LAW. 


Lecture  II.        the  letter  and  spirit  of  the  Constitution ;  laws 
mp  le  powers.    j.g^j|y  calculated  to  effect  objects  intrusted  to 
the  Government."  ^ 


H^burn  v.  Griswold,  8  Wall.  603,  614,  615. 


III. 

THE  EXECUTIVE  BRANCH  OF  THE 
GOVERNMENT.^ 

Constitution,  Article  II,  Section  1.   The  execu-  Lecture  III. 

tive  Power  shall  be  vested  in  a  President  of  the  United 
States  of  America.  He  shall  hold  his  Office  during 
the  Term  of  four  Years,  and,  together  with  the  Vice- 
President,  chosen  for  the  same  Term,  be  elected,  as 
follows : 

Each  State  shall  appoint,  in  such  Manner  as  the 
Legislature  thereof  may  direct,  a  Number  of  Electors, 
equal  to  the  whole  Number  of  Senators  and  Repre- 
sentatives to  which  the  State  may  be  entitled  in  the 
Congress  :  but  no  Senator  or  Representative,  or  Per- 
son holding  an  Office  of  Trust  or  Profit  under  the 
United  States,  shall  be  appointed  an  Elector. 

The  Electors  shall  meet  in  their  respective  states, 
and  vote  by  ballot  for  President  and  Vice-President, 
one  of  whom,  at  least,  shall  not  be  an  inhabitant  of 
the  same  state  with  themselves  ;  they  shall  name  in 
their  ballots  the  person  voted  for  as  President,  and 
in  distinct  ballots  the  person  voted  for  as  Vice-Presi- 
dent, and  they  shall  make  distinct  lists  of  all  per- 
sons voted  for  as  President,  and  of  all  persons  voted 
for  as  Vice-President,  and  of  the  number  of  votes  for 
each,  which  lists  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  seat  of  the  government  of  the 
United  States,  directed  to  the  President  of  the  Senate  ; 
—  The  President  of  the  Senate  shall,  in  presence  of 
the  Senate  and  House  of  Representatives,  open  all  the 
certificates  and  the  votes  shall  then  be  counted ;  — 

1  This  is  Lecture  II  of  the  Lectures  delivered  before  the  classes 
of  the  University  Law  School. 

145 


146  LECTUKES  ON  CONSTITUTIONAL  LAW. 

Lecture  III.  The  person  having  the  greatest  number  of  votes  for 

President,  shall  be  the  President,  if  such  number  be 
a  majority  of  the  whole  number  of  Electors  appointed  ; 
and  if  no  person  have  such  majority,  then  from  the 
persons  having  the  highest  numbers  not  exceeding 
three  on  the  list  of  those  voted  for  as  President,  the 
House  of  Representatives  shall  choose  innnediately, 
by  ballot,  the  I'rcsident.  But  in  choosing  the  Presi- 
dent, the  votes  shall  be  taken  by  states,  the  representa- 
tion from  each  state  having  one  vote ;  a  quorum  for 
this  purpose  shall  consist  of  a  member  or  members 
from  two-thirds  of  the  states,  and  a  majority  of  all 
the  states  shall  be  necessary  to  a  choice.  And  if  the 
House  of  Representatives  shall  not  choose  a  President 
whenever  the  right  of  choice  shall  devolve  upon  them, 
before  the  fourth  day  of  March  next  following,  then 
the  Vice-President  shall  act  as  President,  as  in  the 
case  of  the  death  or  other  constitutional  disability  of 
the  President.  The  person  having  the  greatest  number 
of  votes  as  Vice-President,  shall  be  tlie  Vice-Presi- 
dent, if  such  number  be  a  majority  of  the  whole 
number  of  Electors  appointed,  and  if  no  person  have 
a  majority,  then  from  the  two  highest  numbers  on 
the  list,  the  Senate  shall  choose  the  Vice-I'resident ; 
a  quorum  for  the  purpose  shall  consist  of  two-thirds 
of  the  whole  number  of  Senators,  and  a  majority  of 
the  whole  number  shall  be  necessary  to  a  choice.  But 
no  person  constitutionally  ineligible  to  the  office  of 
President  shall  be  eligible  to  that  of  Vice-President  of 
the  United  States,  i 

The  Congress  may  determine  the  Time  of  chusing 
the  Electors,  and  the  Day  on  which  they  shall  give 
their  Votes  ;  which  Day  shall  be  the  same  throughout 
the  United  States. 

No  Person  except  a  natural  born  Citizen,  or  a  Citi- 
zen of  the  United  States,  at  the  time  of  the  Adoption 
of  this  Constitution,  shall  be  eligible  to  the  Office  of 
President ;  neither  shall  any  Person  be  eligible  to  that 
Office  who  shall  not  have  attained  to  the  Age  of  thirty- 
five  Years,  and  been  fourteen  Years  a  Resident  within 
the  United  States. 

In  Case   of  the  Removal   of   the  President   from 


1  This  paragraph  contains  the  text  of  the  Twelfth  Amendment, 
which  was  a  substitution  for  the  original  clause  in  the  Constitution, 
and  came  into  force  in  1804. 


EXECUTIVE  BRANCH  OF  THE  GOVERNMENT.  14! 

Office,  or  of  his  Death,  Resij^nation,  or  Inability  to  Lectoee  IIL 
discharge  the  Powers  and  Duties,  of  the  said  Otlice, 
the  same  shall  devolve  on  the  Vice-President,  and  the 
Congress  may  by  Law  provide  for  the  Case  of  Re- 
moval, Death,  Resignation,  or  Inability,  both  of  the 
President  and  Vice-President,  declaring  what  Officer 
shall  then  act  as  President  and  such  Officer  shall  act 
accordingly,  until  the  Disability  be  removed,  or  a 
President  shall  be  elected. 

The  President  shall,  at  stated  Times,  receive  for 
his  Services  a  Compensation,  which  sliall  neither  be 
encreased  nor  diminished  during  the  Period  for  which 
Le  shall  have  been  elected,  and  he  shall  not  receive 
within  that  Period  any  other  Emolument  from  the 
United  States,  or  any  of  them. 

Before  he  enter  on  the  Execution  of  his  Office,  he 
shall  take  the  following  Oath  or  Affirmation  ;  — 

"  I  do  solemnly  swear  (or  affirm)  that  I  will  faith- 
"  fully  execute  the  Office  of  President  of  the  United 
"  States,  and  will  to  the  best  of  my  Ability,  preserve, 
"protect  and  defend  the  Constitution  of  the  United 
"States." 

Section  2.  The  President  shall  be  Commander 
in  Chief  of  the  Army  and  Navy  of  the  United  States, 
and  of  the  Militia  of  the  several  States  when  called 
into  the  actual  Service  of  the  United  States ;  he  may 
require  the  Opinion,  in  writing,  of  the  principal  Officer 
in  each  of  the  executive  Departments,  upon  any  Sub- 
ject relating  to  the  Duties  of  their  respective  Offices, 
and  he  shall  have  Power  to  grant  Reprieves  and 
Pardons  for  Offences  against  the  United  States,  except 
in  Cases  of  Impeachment. 

He  shall  have  Power,  by  and  with  the  Advice  and 
Consent  of  the  Senate,  to  make  Treaties,  provided 
two  thirds  of  the  Senators  present  concur;  and  he 
shall  nominate,  and  by  and  with  the  Advice  and  Con- 
sent of  the  Senate,  shall  appoint  Ambassadors,  other 
public  Ministers  and  Consuls,  Judges  of  the  supreme 
Court,  and  all  other  Officers  of  the  United  States, 
whose  Appointments  are  not  herein  otherwise  pro- 
vided for,  and  which  shall  be  established  by  Law : 
but  the  Congress  may  by  Law  vest  the  Appointment 
of  such  inferior  Officers,  as  they  think  proper,  in  the 
President  alone,  in  the  Courts  of  Law,  or  in  the 
Heads  of  Departments. 

The  President  shall  have  Power  to  fill  up  all 
Vacancies  that  may  happen  during  the  Recess  of  the  ^ 


148 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  III.  Senate,  by  granting  Commissions  which  shall  expire 

at  the  End  of  tlieir  next  Session. 

Section  3.  lie  sliall  from  time  to  time  give  to  the 
Congress  Information  of  the  State  of  the  Union,  and 
recommend  to  their  Consideration  such  Measures  as 
he  shall  judge  necessary  and  exi^edient ;  he  may,  on 
extraordinary  Occasions,  convene  both  Houses,  or 
either  of  them,  and  in  Case  of  Disagreement  between 
them,  with  Respect  to  the  Time  of  Adjournment,  he 
may  adjourn  them  to  such  Time  as  he  shall  think 
proper  ;  he  shall  receive  Ambassadors  and  other  pub- 
lic Ministers ;  he  shall  take  Care  that  the  Laws  be 
faithfully  executed,  and  shall  Conuuission  all  the  offi- 
cers of  the  United  States. 

Section  4.  The  President,  Vice-President  and  all 
civil  Officers  of  the  United  States,  shall  be  removed 
from  Office  on  Impeachment  for,  and  Conviction  of. 
Treason,  Bribery,  or  other  high  Crimes  and  Misde- 
meanors. 

The  Execntive.  You  are  all  familiar  witli  the  main  principle 
of  all  written  constitutions  in  the  American 
form  of  government,  that  the  powers  of  govern- 
ment are  reposed  in  three  distinct  and  separate 
bodies  of  magistracy.  These  are,  the  legislative 
or  law  making  power,  the  executive  or  law  en- 
forcing power,  and  the  judiciary,  which  construes 
the  laws  and  administers  the  rights  of  citizens 
as  among  themselves,  and  as  they  relate  to  con- 
tests with  the  Government. 

For  the  subject  matter  of  the  present  lecture 
I  have  selected  that  part  of  the  Constitution 
of  the  United  States  which  is  devoted  to  the 
executive  branch.  This  is  found  in  Article  Two 
of  that  instrument.  The  first  and  second  para- 
graphs of  the  first  section  are  as  follows : 

"1.  The  Executive  power  shall  be  vested  in 
a  President  of  the  United  States  of  America. 
He  shall  hold  his  office  during  the  term  of  four 


EXECUTIVE  BRANCH  OF  THE  GOVERNMENT.  149 

years,  and,   together   with    the    Vice-President,  Lecture  hi. 
chosen  for  the  same  term,  be  elected  as  follows  ;     ^   xecutive. 

"  "1.  Each  State  shall  appoint,  in  such  manner 
as  the  Legislature  thereof  may  direct,  a  number 
of  Electors,  equal  to  the  whole  number  of  Sen- 
ators and  Representatives,  to  which  the  State 
may  be  entitled  in  the  Congress :  but  no  Senator 
or  Representative,  or  ^oerson  holding  an  office  of 
trust  or  profit,  under  the  United  States,  shall  be 
appointed  an  Elector." 

In  1804  the  Twelfth  Amendment,  the  text  of 
which  will  be  found  at  the  head  of  this  lecture, 
was  adopted,  and  substituted  in  the  place  of  the 
third  paragraph  of  Article  II. 

The  manner  of  electing^  the  President  of  the 
United  States  was  a  subject  of  very  grave  con- 
sideration in  the  Convention  which  framed  the 
Constitution,  and  several  propositions  which  had 
apparently  at  one  time  the  sanction  of  a  majority 
of  that  body  were  changed  and  modified  before 
the  final  adoption  of  the  rule  here  stated.  As 
originally  adopted,  and  as  it  now  exists,  it  was 
supposed  that  the  body  of  electors  interposed  be- 
tween the  State  legislatures  and  the  presidential 
office  would  exercise  a  reasonable  independence 
and  fair  judgment  in  the  selection  of  the  chief 
Executive  of  the  National  Government,  and  that 
thus  the  evil  of  a  President  selected  by  immedi- 
ate popular  suffrage  on  the  one  side,  and  the 
opposite  evil  of  an  election  by  the  direct  vote  of 
the  States  in  their  legislative  bodies  on  the 
other,  would  both  be  avoided.  A  very  short 
experience,   however,  demonstrated   that   these 


150  LECTUKES    ON    CONSTITUTIONAL    LAW. 

lectukk  III.       electors,  whether  chosen  by  the  legislatures  of 

The  Executive.       .i         Cj.    j.  xi  •     •       n  i,        it. 

the  fetates,  as  they  were  originally,  or  by  the 
popular  suffrage  of  each  State,  as  they  have 
come  to  be  now,  or  by  limited  districts  in  each 
State,  as  was  at  one  time  the  prevailing  system, 
are  always  but  the  puppets  selected  under  a 
moral  restraint  to  vote  for  some  particular  per- 
son who  represented  the  preferences  of  the  ap- 
pointing power,  whether  that  was  the  legislature, 
or  the  more  popular  suffrage  by  which  the  legis- 
lature itself  was  elected.  So  that  it  has  come 
to  pass  that  this  curious  machinery  is  only  a 
mode  of  casting  the  vote,  to  which  a  State  is 
entitled  in  the  election  of  President,  in  favor  of 
that  candidate  who  is  the  favorite  of  the  ma- 
jority of  the  people,  entitled  to  vote  for  the  more 
popular  branch  of  the  State  legislature  in  each 
State. 

This  system  has  given  rise  on  more  than  one 
occasion  to  serious  difficulties  in  ascertaining 
who  has  been  really  elected  President,  and 
seems,  if  it  ever  had  any  useful  purpose,  to  have 
long  become  an  obstruction  and  a  stumbling- 
block  in  the  way  of  some  sounder  and  wiser 
system.  A  change  has  often  been  talked  of 
and  canvassed  in  Congress  and  in  the  public 
journals,  but  the  difficulty  of  agreeing  on  any 
other  system,  which  Congress  may  present  as  an 
amendment  to  the  Constitution,  has  thus  far  led 
to  the  failure  of  all  attempts  to  make  such  change. 

I  do  not  propose  to  take  up  any  more  of  your 
time  by  a  discussion  of  the  manner  of  electing 
the  President. 


EXECUTIVE  BRANCH  OF  THE  GOVERNMENT.  1-")1 

The  experience  of  nearly  a  liiindred  years  of  i^kcture  hi. 
government  under  this    Constitution    has    pro- ''''« J--''<'-<^"tive. 

duced  in  the  minds  of  many  thinking  men  and 
able  statesmen  a  belief  that  the  term  of  four 
years  prescribed  for  the  office  of  President  is  too 
short.  The  great  disturbance  of  public  tranquil- 
lity produced  by  the  recurring  election  of  a 
President  once  in  four  ^^ears,  the  enormous  pat- 
ronage which  belongs  to  the  presidential  office, 
stinmlating  all  the  activities,  and  many  of  the 
most  evil  passions,  of  the  human  heart,  and  the 
fact  that  this  struggle,  owing  to  the  shortness 
of  the  period  between  one  election  and  another, 
is  always  going  on  more  or  less  by  way  of  prep- 
aration for  that  event,  leaving  the  public  mind 
at  no  time  open  to  that  calmness  which  is  nec- 
essary to  a  just  consideration  and  appreciation 
of  the  measures  of  government  jDolicy  which 
ought  to  influence  their  votes,  are  strong  argu- 
ments for  this  belief.  As  we  shall  see  hereafter, 
it  is  the  duty  of  the  President  to  suggest  to  the 
legislative  body  and  recommend  for  their  con- 
sideration measures  of  public  policy  which  must 
more  or  less  affect  the  prosperity  and  happiness 
of  the  entire  people.  If  he  were  assured,  by  the 
length  of  the  period  for  which  he  would  hold 
the  office,  of  a  sufficient  time  in  which  his  meas- 
ures, if  enacted,  could  be  fairly  judged  on  their 
merits,  or  his  recommendations,  whether  enacted 
or  not,  could  have  the  just  estimation  of  the 
public  sentiment,  that  independence  and  faith- 
ful expression  of  his  convictions,  which  can  only 
make  such  recommendations  useful,  would  have 


152  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  III.  a  fair  support  in  these  considerations ;  while,  if 
ihe  Executive.  |^^  |^^  desirous  of  a  re-election,  as  has  proved  to 
be  almost  universal,  or  if  having  no  desire  for 
re-election  he  has  that  reasonable  wish  to  retire 
with  a  favorable  estimate  of  his  conduct,  which 
is  natural  to  all  men,  he  would  be  much  influ- 
enced by  these  considerations  to  recommend 
that  which  was  policy  rather  than  tliat  which 
was  wise,  and  to  frame  his  conduct  in  accordance 
with  his  view  of  what  the  public  would  say  at 
the  time,  rather  than  what  might  be  their  esti- 
mate, after  a  long  and  calm  consideration. 

In  opposition  to  these  views  it  has  been  urged 
that  a  President  elected  for  a  long  period  would, 
by  the  use  of  the  patronage  at  his  disposal,  by 
the  arts  of  the  politician  and  the  great  influence 
which  he  would  be  enabled  to  exert  over  the 
popular  voice  by  the  exercise  of  power  for  a 
lengthened  period,  always  be  able  to  secure  a 
re-election ;  and  it  would  be  in  the  end  equivalent 
to  holding  the  office  for  life.  Probably  some 
period  longer  than  four  years  and  shorter  than 
ten  would  be  found  to  remove  the  principal 
objections  to  the  present  short  term  without 
incurring  the  dangers  incident  to  a  longer  one.^ 

1  It  was  at  first  proposed  to  make  the  term  of  office  of  the 
Executive  seven  years,  and  it  so  stood  in  the  first  draft  of  tlie 
Constitution.  Tliis  was,  however,  altered  upon  the  report  of  a 
committee  by  a  vote  of  ten  States  against  one  fixing  the  period  at 
four  years,  which  was  finally  adopted. 

It  was  also,  at  one  time,  proposed  to  fix  the  term  of  the  Execu- 
tive during  good  beliavior,  and  this  was  supported  by  Madison,  Jay, 
and  Hamilton,  among  others,  although  the  latter  afterward  changed 
his  views  somewhat.  See  2  Story,  Constitution,  sec.  H'M  (4th  ed.), 
281  and  note. 


EXECUTIVE  BRANCH  OF  THE  GOVERNMENT.  153 


The  qnalifications  which  make  a  person  eligi- lecture  hi. 

'\'lu',  Execiitivf 
Quuliticatious. 


ble  to  the  office  of  President  are  found  in  para-  ""' ''^^^'^"t'^'^- 


graph  four  of  the  first  section  of  this  article, 
which  reads  as  follows  :  — 

"  No  person  except  a  natural  born  citizen,  or 
a  citizen  of  the  United  States,  at  the  time  of 
the  adoption  of  this  Constitution,  shall  be  eligi- 
ble to  the  office  of  President ;  neither  shall  any 
person  be  eligible  to  that  office  who  shall  not 
have  attained  to  the  age  of  thirty-five  years,  and 
been  fourteen  years  a  resident  within  the  United 
States." 

In  regard  to  this  nothing  more  need  be  said 
on  this  occasion. 

In  order  to  secure  his  freedom  of  action  and 
independence  of  the  legislative  branch  of  the 
Government,  paragraph  six  provides  for  his  com- 
pensation or  salary  in  the  following  language : 

"  The  President  shall,  at  stated  times,  receive 
for  his  services,  a  compensation,  which  shall 
neither  be  increased  nor  diminished  during  the 
period  for  which  he  shall  have  been  elected,  and 
he  shall  not  receive  within  that  period  any  other 
emolument  from  the  United  States,  or  any  of 
them." 

This  provision,  in    some    respects    similar  to  Salary. 


Jefferson,  in  1813  wrote  as  follows:  "I  am  for  responsibilities 
at  short  periods,  seeing  neither  reason  nor  safety  in  making  public 
functionaries  independent  of  the  nation  for  life,  or  even  for  a  long 
term  of  years.  On  this  principle  I  prefer  the  Presidential  term  of 
four  years,  to  that  of  seven  years,  which  I  myself  had  at  first  sug- 
gested, annexing  to  it,  however,  ineligibility  forever  after ;  and  I 
wish  it  were  now  annexed  to  the  second  quadrennial  election  of 
President."     6  Jefferson's  Works,  213. 


154 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  III. 
The  Executive. 
Salary. 


Powers  of  the 
President. 


that  in  regard  to  the  judges,  is  a  wise  one.  They 
exempt  the  two  other  branches  of  the  Govern- 
ment, the  executive  and  the  judicial,  from  an 
undue  control  by  the  legislative  branch,  which 
has  the  power  of  the  administration  of  the 
finances  of  the  Government,  the  appropriation  of 
money  to  pay  for  its  expenses,  and  the  regula- 
tion of  the  salaries  of  all  officers.  It  thus  secures, 
so  far  as  a  fixed  compensation  can  do  it,  the 
independence  of  these  two  other  departments.^ 

In  the  second  and  third  sections  of  this  article 
we  find  the  definition  of  the  powers,  duties,  and 
obligations  of  the  President  of  the  United  States. 
They  read  as  follows  :  — 

"  Section  2.  The  President  shall  be  com- 
mander-in-chief of  the  army  and  navy  of  the 
United  States,  and  of  the  militia  of  the  several 
States,  when  called  into  the  actual  service  of 
the  United  States  ;  he  may  require  the  opinion, 


1  The  difference  between  the  provision,  in  this  regard,  to  the 
President  and  that  in  regard  to  tlie  judges  of  the  United  States 
courts  is  this  •  the  salary  of  a  judge  cannot  be  diminished  during 
the  continuance  of  his  office  ;  that  of  the  President  can  be  neither 
increased  nor  diminished  during  the  period  for  which  he  shall  have 
been  elected.  This  provision  is  construed  as  applicable  only  to  the 
term  in  which  the  law  is  enacted  making  the  increase.  On  the  3d 
of  March,  1873,  Congress,  by  the  Legislative,  Executive,  and  Judicial 
Appropriation  Act,  passed  that  day,  17  Stat.  485,  c.  220,  provided 
for  a  general  increase  of  salaries,  including  the  salaries  of  the 
President  and  the  Justices  of  the  Supreme  Court.  President  Grant 
approved  the  bill.  His  first  term  of  office  expired  the  next  day, 
and  he  at  once  entered  upon  his  second  term.  On  the  20th  of 
January,  1874,  Congress  repealed  so  much  of  this  act  "  as  provide 
for  the  increase  of  the  compensation  of  public  officers  and  employes, 
whether  members  of  Congress,  delegates,  or  others,  except  the 
President  of  the  United  States  and  the  Justices  of  the  Supreme 
Court." 


EXECUTIVE  BRANCH  OF  THE  GOVERNMENT.  1  ")5 


in  writing,  of   the    principal  officer  in  each  of  lecturk  hi. 

The  Executivt!. 


the  executive    departments,   upon    any    subject  i.,'werr<jf 
relating  to  the  duties  of  their  respective  offices,  I'lesitient. 
and  he  shall  have  power  to  grant  reprieves  and 
pardons  for  offences  against  the  United  States, 
except  in  cases  of  impeachment. 

"  He  shall  have  power,  by  and  with  the  advice 
and  consent  of  the  Senate,  to  make  treaties,  pro- 
vided two-thirds  of  the  senators  present  concur ; 
and  he  shall  nominate,  and  by  and  with  the 
advice  and  consent  of  the  Senate,  shall  appoint 
ambassadors,  other  public  ministers,  and  consuls, 
judges  of  the  Supreme  Court,  and  all  other 
officers  of  the  United  States,  whose  appoint- 
ments are  not  herein  otherwise  provided  for, 
and  which  shall  be  established  by  law ;  but  the 
Congress  may  by  law  vest  the  appointment  of 
such  inferior  officers  as  they  think  proper,  in  the 
President  alone,  in  the  courts  of  law,  or  in  the 
heads  of  departments. 

"  The  President  shall  have  power  to  fill  up  all 
vacancies  that  may  happen  during  the  recess  of 
the  Senate,  by  granting  commissions  which  shall 
expire  at  the  end  of  their  next  session. 

"  Section  3.  He  shall,  from  time  to  time,  give 
to  the  Congress  information  of  the  state  of  the 
Union,  and  recommend  to  their  consideration 
such  measures  as  he  shall  judge  necessary  and 
expedient ;  he  may,  on  extraordinary  occasions, 
convene  both  Houses,  or  either  of  them,  and  in 
case  of  disagreement  between  them,  with  respect 
to  the  time  of  adjournment,  he  may  adjourn 
them  to  such  time  as  he  shall  think  proper ;   he 


the 


15G 


LECTUllES    ON    CONSTITUTIONAL    LAW. 


Lecture  III. 
The  Executive. 
Powers  of  the 
President. 


Appointments  to 
office. 


sliall  receive  ambassadors  and  other  public  minis- 
ters ;  he  shall  take  care  that  the  laws  be  faith- 
fully executed  and  shall  commission  all  of  the 
officers  of  the  United  States." 

A  critical  examination  of  the  powers  thus 
conferred  on  the  President  would  hardly  justify 
the  jealousy  and  dread  which  man3^  of  the 
wisest  statesmen  of  the  period  of  the  formation 
of  the  Constitution  entertained  on  that  subject. 
With  the  exception  that  he  sliall  be  commander- 
in-chief  of  the  army  and  navy,  and  of  the  militia 
of  the  several  States  when  called  into  the  actual 
service  of  the  United  States/  and  the  power  of 
appointment  to  office,  there  is  little  to  justify 
such  fear ;  and  when  we  consider  that  Congress 
alone  can  declare  war,  and  thus  put  the  com- 
mander-in-chief in  a  position  for  any  dangerous 
use  of  the  military  arm  of  the  Government,  that 
the  co-operation  of  the  Senate  is  necessary  to 
the  appointment  of  all  the  other  officers  of  the 
army  and  navy  below  the  President,  that  the 
consent  of  that  body  is  essential  to  the  confirma- 
tion of  all  the  civil  officers  which  the  President 
may  nominate  or  appoint,  and  that  the  appoint- 
ment of  the  largest  body  of  these  officers  may, 
by  an  act  of  Congress,  be  taken  away  from  the 
President  and   vested  in  the   courts   of  law  or 


1  The  question  was  raised  during  tlie  War  of  1812  whether  the 
right  to  command  the  militia  could  be  delegated  by  the  President 
when  they  were  called  into  the  public  service.  President  Washing- 
ton, however,  called  out  the  militia  during  the  Pennsylvania  insur- 
rection of  1704,  and  they  acted  under  the  orders  of  the  governor 
of  Virginia,  to  whom  the  chief  command  was  given  during  his 
absence.    Rawle  on  the  Constitution,  193. 


EXECUTIVE  BRANCH  OF  THE  GOVERNMENT.  107 

heads  of  departments,  there  woidd  seem  to  be  lecture  hi. 
but  little  reason  to  dread  an  undue  exercise  of  ^'"'  ^^^'''="^'^«- 

Aj)]K)iiitnients  to 

the  grant  of  power  to  the  President,  under  this  otiice. 
pi30 vision  of  the  Constitution. 

The  experience  of  a  century  of  the  operations  of 
the  Government  has  shown  that,  while  the  growth 
of  the  country  in  territoiy,  in  population,  in  wealth, 
and  in  power  has  added  largely  to  the  patronage 
of  the  Executive  in  the  way  of  appointments  to 
office  and  to  the  importance  of  those  offices,  and 
while  the  frequent  accession  of  successful  and 
popular  military  chiefs  to  the  Presidency,  some 
of  whom  were  men  of  arbitrary  disposition,  and 
well  inclined  to  the  exercise  of  all  the  power 
which  the  Constitution  gave  them,  and  who 
have  shown  in  every  instance  a  disposition  for  a 
continuance  in  power  by  seeking  or  accepting  a 
re-election,  there  has  never  been  the  slightest 
danger  to  the  liberties  of  the  country,  or  of  an 
overthrow  of  the  existing  institutions,  or  of  any 
material  infraction  of  the  general  principles  of  • 
constitutional  government  from  this  quarter.  In 
fact,  of  all  the  three  branches  of  the  constitu- 
tional government  of  the  United  States,  the 
Executive  has  been  the  most  crippled,  confined, 
and  limited  in  its  practical  use,  during  the  period 
mentioned  of  the  power  really  conferred  on  it. 

The  power  of  appointment  to  office,  which 
was  originally  considered  the  great  source  of 
danger,  has,  by  a  practice  not  to  be  commended, 
and  at  variance  with  the  letter  and  spirit  of  the 
Constitution,  been  largely  controlled  in  the  hands 
of  the  President  by  the  two  branches  of  the 


158  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkctuke  III.       Legislature.     The  exercise  of  this  restraint  by 
The  Executive,     ^j^^  Senate,  in  its  ridit  to  refuse  its  consent  to 

Appointments  to  7  o 

office.  nominations  made  to  it  by  the  President,  is  not 

to  be  complained  of.  It  is  a  power  which  the 
Constitution  reposes  in  that  body  and  which 
though  often  used  with  a  disposition  to  conform 
to  the  wishes  of  individual  members  of  the  Sen- 
ate (called  "  the  courtesy  of  the  Senate  "),  rather 
than  looking  to  the  public  good  and  the  fitness 
of  the  nominee,  has,  perhaps,  on  the  whole  been 
exercised  with  prudence  and  forbearance.  But 
the  disposition  of  the  members  of  the  House  of 
Representatives,  in  which  senators  have  often 
joined,  to  impose  their  individual  wishes  upon 
the  President  as  entitled  to  paramount  weight 
in  his  selection  for  appointments  to  office,  stands 
on  no  such  favorable  foundation,  and  the  press- 
ure from  this  source,  which  has  unfortunately 
been  submitted  to  by  successive  Presidents,  has 
almost  passed  into  an  informal  rule  of  action,  — 
a  rule  which  has  encroached  upon  the  powers 
clearly  committed  by  the  Constitution  to  the 
President,  and  which,  when  submitted  to,  tends 
to  destroy  the  exercise  of  that  sound  judgment 
and  freedom  of  choice  which  that  instrument, 
for  wise  purposes,  intended  to  repose  in  the 
President.  Indeed,  if  there  is  any  wisdom  in 
the  fundamental  proposition  of  constitutional 
law,  that  the  functions  of  the  executive,  legis- 
lative, and  judicial  bodies  should  be  kept  sepa- 
rate, that  wisdom  is  most  manifest  in  the 
provision  which  is  intended  to  repose  exclu- 
sively in  the  President  the  power  of  appointment 


EXECUTIVE  BRANCH  OF  THE  GOVERNMENT.  150 

to  office,  except   so  fear  as   the   consent  of  the  lkpturk  hi. 
Senate   may   be  required.     The   interference   of  ^''''  Kxe('ntivc. 

Appointments  to 

the  more  popular  branch  of  the  legislative  body  office. 
in  this  function,  and  the  great  influence  which  it 
has  acquired,  and  which  the  members  use  as  a 
means  of  political  influence  to  secure  their  own 
re-election,  is  a  pernicious  practice  and  at  war 
with  the  manifest  purpose  of  the  Constitution. 

Perhaps  the  third  clause  of  the  second  section.  Power  to  en 
in  regard  to  the  power  of  the  President  to  fill  ^■«f^"'=if  Murine 
vacancies  that  may  happen  during  the  recess  of 
the  Senate,  has  given  rise  in  recent  years  to  more 
controversy  than  any  other,  and  is  the  one  as  to 
which  the  executive  power  has  been  more  fre- 
quently charged  with  a  purpose  to  exceed  its 
just  limits  than  any  other.^  The  question  of  the 
right  of  removal  from  office,  and  the  conditions 
under  which  it  may  be  exercised  by  the  Presi- 
dent alone,  has  been  a  much  controverted  matter 
from  the  beginning  of  the  Government  to  the 
present  time ;  and  when  the  legislative  body,  and 
especially  the  Senate,  have  been  of  the  opposite 
party  in  politics -to  the  President,  it  has  given 
rise  to  considerable  controversy.  It  may  be  con- 
sidered as  settled,  however,  by  the  practice  of 
the  Government,  and  by  a  fair  construction  of 
the  Constitution,  that  the  President  has,  espe- 
cially in  the  recess  of  the  Senate,  the  right  to 
remove  any  officer  whose  appointment  is  de- 
pendent upon  the  Executive.  But  since  this 
provision  of  the  Constitution  requires  that  the 

1  See  Note  at  the  end  of  this  Lecture. 


IGO 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  III. 
The  Executive. 
Power  to  till 
vacancies  during 
recess  of  Senate. 


The  tenure  of 
office  lavF. 


commissions  granted  by  the  President  in  the 
recess  of  the  Senate  shall  expire  at  the  end  of 
the  next  session,  and  the  implication  is  still 
stronger  that  ajopointments  made  while  the 
Senate  is  in  session  must  be  then  sulmiitted  to  it 
for  its  consent,  there  would  seem  to  be  no  ques- 
tion that  the  President  should,  when  these  com- 
missions are  granted  during  its  recess,  notify  the 
Senate  of  the  removal  which  he  has  made,  and 
of  the  appointment  by  which  he  has  filled  the 
office.  And  there  can  be  as  little  doubt  that, 
unless  the  Senate  consents  to  the  new  appoint- 
ment, or  to  some  other  new  appointment,  during 
its  session  next  succeeding  the  removal,  this 
action  of  the  Senate  must  be  construed  as  a  dis- 
approval by  that  body  of  the  removal  of  the 
officer,  or  of  the  person  who  has  been  nominated 
to  fill  the  place. 

In  the  unfortunate  event  of  the  President  and 
the  Senate  being  unable  to  agree  upon  any  other 
person  than  the  original  incumbent  to  fill  the 
vacancy,  before  the  end  of  the  session  of  the 
Senate,  it  has  been  insisted  by  many  statesmen, 
and  particularly  by  members  of  the  Senate,  that 
this  operates  as  a  restoration  of  the  officer  re- 
moved to  the  place  which  he  held.  The  tenure 
of  office  law,  passed  by  the  Congress  of  the 
United  States  over  the  veto  of  President  John- 
son, is  framed  upon  this  principle.  So  far  at 
least  was  this  principle  acted  on,  that  the  Presi- 
dent could  not,  after  the  adjournment  of  the 
Senate,  to  whom  such  nomination  had  been  or 
should  have  been  made,  fill  the  office  with  any 


EXECUTIVE  BRANCH  OF  THE  GOVERNMENT.  IGl 

other  person ;  but,  in  the  language  of  that  act,  lecture  hi. 
"  such  office  shall  remain  in  abeyance,  without  .1.!'*^'  J"-^"»tive. 

'J  '  \ lie  tenure  of 

any  salary,  fees,  or  emoluments  attached  thereto,  t)"'^'*^  'aw. 
until  the  same  shall  be  filled  by  appointment  by 
and  with  the  advice  and  consent  of  the  Senate." 
This  statute  has  not  been  received  with  entire 
satisfaction  by  considerate  statesmen  and  con- 
stitutional lawyers.  It  was  made  in  the  heat 
of  ill-feeling,  as  a  curb  upon  President  Johnson, 
during  his  long  and  bitter  controversy  with  both 
branches  of  Congress,  which  ultimately  led  to 
the  preferring  of  articles  of  impeachment  against 
him  by  the  House  of  Representatives,  and  to  a 
protracted  trial  upon  the  same. 

This  perhaps  is  not  the  time  nor  the  place  to 
express  my  opinion  upon  the  nature  of  that  con- 
troversy :  but  I  think  it  clear  that,  while  the 
right  of  removal  remains  in  the  President,  he 
can  put  no  one  in  the  place  thus  made  vacant 
for  a  longer  period  than  the  end  of  the  next  suc- 
ceeding session  of  the  Senate ;  and  that,  whether 
by  failure  to  nominate  some  person  to  fill  the  > 

place  during  that  session  of  the  Senate,  or  by 
the  refusal  of  the  Senate  to  give  its  assent  to 
such  nomination,  the  office  is,  at  the  end  of  that 
session,  vacant ;  and  that  an  effort  of  the  Presi- 
dent to  keep  in  office  the  man  of  his  choice  by 
reappointment  under  such  circumstances  is,  at 
least  in  spirit,  a  violation  of  the  Constitution. 
The  functions  of  the  President  and  of  the  Sen- 
ate in  relation  to  appointments  to  office  are  so 
clearly  stated  in  the  Constitution  that  it  would 
not   seem   to   be   necessary   that   any  question 


1G2 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  III. 
The  Executive. 
The  tenure  of 
office  law. 


Commander-in- 
chief. 


should  arise  about  it.  The  initiative  is  with 
tlie  Pre.sident,  the  right  to  nominate  and  refer 
that  nomination  to  the  Senate  is  with  him,  and 
the  Senate  can  have  no  right  to  dictate  to  him 
whom  he  shall  nominate.  Their  right  is  one  of 
approval  or  disapproval.  When  they  have  exer- 
cised that  right,  the  President  has  as  little  au- 
thority to  make  other  efforts  to  impose  the  same 
nominee  upon  the  Senate,  or  to  continue  him  in 
office,  as  that  body  would  have  to  interfere  with 
the  President's  choice  among  all  eligible  persons 
to  such  office.  Hence  any  attempt,  by  giving 
the  commission  to  the  same  person  who  had 
been  rejected  by  the  Senate,  after  the  expiration 
of  its  session,  or  to  renominate  the  same  person 
to  the  Senate  after  its  rejection  during  the  same 
session,  is  equally  opposed  to  the  spirit,  if  not  to 
the  letter  of  the  Constitution,  and  to  the  just  right 
of  either  the  President  or  the  Senate  to  exercise 
the  functions  and  powers  which  the  Constitution 
confers  upon  either  of  them. 

The  power  of  the  President  as  commander-in- 
chief  of  the  army  and  navy  has  in  practice  never 
been  exercised  by  the  President's  taking  imme- 
diate command  of  the  army  or  the  navy  during 
the  existence  of  actual  hostilities ;  so  that,  in  that 
sense,  no  President  has  ever  been  commander-in- 
chief  when  the  army  immediately  confronted  an 
enemy.  Such  authority  as  the  President  has 
exercised  under  this  constitutional  provision  has 
been  almost  exclusively  through  the  Secretary 
of  War  and  the  Secretary  of  the  Navy,  offices 
created  among  others  by  an  act  of  the  first  ses- 


EXECUTIVE  BRANCH  OF  THE  GOVERNMENT.  103 

sion  of  the  Congress,  which  distributed  the  exer-  lectuue  hi. 
cise  of    the  executive  functions    amonf;^  several  ^*"'^'^*^*^""''*'- 

,  1        1  1        I-  1  c  Heads  of  dep.irt- 

departments,  at  the  head  oi  each  of  which  was  mfnts. 
placed  a  minister,  called  usually  a  "Secretary." 
And  so  strong  and  prominent  to  the  public  eye  has 
been  the  control  of  these  secretaries  in  the  oper- 
ations of  the  army  and  navy,  in  the  few  w\irs  of 
an  important  character  which  we  have  had  dur- 
ing the  existence  of  the  government,  that  the 
influence  of  the  President  in  the  actual  move- 
ments of  the  army  and  navy  has  been  hardly 
perceptible.  Whether  in  case  a  war  should  occur 
during  a  period  when  the  incumbent  of  the  ex- 
ecutive office  is  a  man  who  has  had  experience 
in  the  command  of  armies,  and  with  a  good 
military  reputation,  it  would  be  judicious  for 
him  to  place  himself  at  the  head  of  the  army, 
or  to  conduct  its  campaigns,  or  to  be  present 
and  directing  in  battle,  or  wdiether  public  senti- 
ment would  tolerate  such  a  course  of  action,  is 
extremely  doubtful. 

In  the  recent  Civil  War,  which,  if  we  look  to 
the  number  of  men  engaged  in  it,  or  to  the  num- 
ber destroyed  by  it,  or  to  the  magnitude  of  the 
resources  brought  to  bear  in  its  prosecution  on 
both  sides,  or  to  the  destructive  power  of  arma- 
ments and  weapons,  or  the  advanced  skill  of  the 
military  art,  is  perhaps  the  greatest  war  that 
history  has  to  describe,  the  Secretary  of  War 
looms  up  as  a  figure  whose  importance  as  re- 
gards the  successful  issue  of  that  w^ar  is  hardly 
exceeded,  if  it  be  equalled,  by  any  person  holding 
any  office  or  command   in  the  armies  of   the 


1G4 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  HI. 
The  Executive. 
Hjeads  of  depart- 
ments. 


Pardons, 


United  States.  Indeed,  the  name  of  Edwin  M. 
Stanton,  who,  though  a  civilian  and  until  the 
period  of  the  war  a  private  citizen,  will  go  down 
to  posterity  as  the  great  war  minister  of  the 
greatest  war  in  the  world's  history. 

In  all  this,  however,  the  secretaries  of  the 
War  Department,  as  also  the  heads  of  all  the 
other  departments,  are  but  executive  ministers 
and  agents,  discharging  the  functions  of  the  ex- 
ecutive office,  under  the  control  and  with  the 
consent  of  the  President.  How  far  President 
Lincoln  actually  interposed  his  own  will  and  his 
own  judgment  in  the  conduct  of  this  war  will 
perhaps  never  be  fully  known,  though  it  is  well 
understood  that  on  many  important  occasions, 
and  in  great  emergencies,  he  enforced  his  judg- 
ment in  many  ways ;  mainly,  however,  in  displac- 
ing commanders  of  large  armies  and  appointing 
others,  until  success  established  his  own  confi- 
dence and  the  confidence  of  the  public  in  a  few 
great  military  leaders. 

One  of  the  powers  intrusted  to  the  President 
by  this  second  section  is  that  of  granting  re- 
prieves and  pardons  for  offences  against  the 
United  States,  except  in  cases  of  impeachment. 
This  useful  power  could  nowhere  be  more  ap- 
propriately lodged  than  with  the  chief  executive 
officer  of  the  Government.  It  is  one  which  does 
not  affect  the  public  generally,  and  by  reason  of 
the  limited  criminal  jurisdiction  of  the  Govern- 
ment of  the  United  States  does  not  call  for 
much  comment  of  a  public  character.  It  is 
derived  from  the  history  of  our  British  ances- 


EXECUTIVE  BRANCH  OF  THE  GOVERNMENT.  105 

tors ;  and,  in  the  absence  of  any  more  particular  LKcrtjuK  iii. 
definition    of    it    than    is    found    in    this    short  J'"'. ''''''■"""^''- 

Pardons. 

sentence  of  the  Constitution,  so  far  as  it  has 
become  the  subject  of  public  discussion  or  of 
judicial  decision,  reliance  has  been  had  mainly 
upon  the  nature  and  character  of  the  power  as 
exercised  by  the  Crown  of  Great  Britain.  The 
power,  therefore,  in  this  general  sense  is  almost 
unlimited ;  is  vested  exclusively  in  the  Presi- 
dent ;  and  is  not  subject  to  the  interference  of 
Congress.^ 

It  has  been  officially  decided  that  it  may  be 
exercised  as  well  before  the  trial  as  after  con- 
viction.^ It  also  includes  the  power  to  commute 
sentences.^  It  may  be  granted  upon  conditions.* 
This  grant  of  power  carries  with  it  the  power  to 
release  from  fines,  penalties,  and  forfeitures  which 
accrue  from  the  offence.^ 

An  act  of  Congress  which  attempted  to  destroy 
the  effect  of  a  pardon  by  the  President  of  per- 
sons engaged  in  the  rebellion,  who  were  claim- 
ants in  the  courts  of  the  United  States,  under 
the  Captured  and  Abandoned  Property  Act,  was 
held  by  the  Supreme  Court  to  be  unconstitu- 
tional.^    The  original  act,  which  authorized  per- 

1  A  pardon  reaches  both  the  punishment  prescribed  for  the  of- 
fence and  the  guilt  of  the  offender  ;  and  when  the  pardon  is  full  it 
releases  the  punishment  and  blots  out  of  existence  the  guilt,  so 
that  in  the  eye  of  the  law  the  offender  is  as  innocent  as  if  he  had 
never  committed  the  offence.  Ex  parte  Garland,  4  Wall.  333,  380. 
'     2  6  Opinions  Attorneys  General,  20. 

^  Ex  parte  WiUiani  Wells,  18  How.  307. 

*  United  States  v.  Wilsnn,  7  Pet.  150,  161. 

5  Osborn  v.  United  States,  91  U.  S.  474. 

«  United  States  v.  Klein,  13  Wall.  128. 


1G6  LECTURES    ON    CONSTITUTIONAL    LAW. 

lf.cture  III.       sons  whose  property  had  been  seized  as  captured 
'ihe  Executive,     ^^j  abandoned  durino;  the  war,  and  sold,  and 

Pardons.  ^  ^  ^ 

the  proceeds  paid  into  the  treasury,  to  make  a 
claim  for  it  in  the  Court  of  Claims  and  recover 
the  money,  required  that  proof  should  be  made 
that  the  claimant  had  been  loyal  to  the  Govern- 
ment during  the  war.  The  Supreme  Court  had 
in  a  case  previous  to  this  declared  that  the 
pardon  of  the  President  dispensed  with  the 
necessity  of  this  proof  of  loyalty.  To  counteract 
the  effect  of  this  decision  Congress,  on  the  12th 
of  July,  1870,^  enacted  that  such  proof  of  loyalty 
was  necessary  to  the  recovery  in  the  Court  of 
Claims,  irrespective  of  the  effect  of  any  execu- 
tive proclamation,  pardon,  amnesty,  or  other  act 
of  condonation  or  oblivion.  The  Supreme  Court 
held  that  this  statute  was  designed  to  destroy 
the  effect  which  the  Constitution  of  the  United 
States  intended  to  give  to  a  pardon  by  the  Presi- 
dent, and  thus  infringed  the  constitutional  power 
of  the  Executive,  The  court  uses  the  following 
languao;e :  — 

"  Now  it  is  clear  that  the  Legislature  cannot 
change  the  effect  of  such  a  pardon  any  more 
than  the  Executive  can  change  a  law.  Yet  this 
is  attempted  by  the  provision  under  considera- 
tion. The  court  is  required  to  receive  special 
pardons  as  evidence  of  guilt  and  to  treat  them 
as  null  and  void.  It  is  required  to  disregard 
pardons  granted  by  proclamation  on  condition, 
though  the  condition  has  been  fulfilled,  and  to 
deny  them  their  legal   effect.      This   certainly 

1  16  Stat.  235,  c.  25L 


EXECUTIVE  BRANCH  OF  THE  GOVERNMENT.  1G7 

impairs  the  executive  authority  and  directs  the  lecturk  hi. 
♦  court  to  be  instrumental  to  that  end."^  The  Kxecuiv... 

raruoiiH. 

The  wisdom  of  exempting  cases  of  impeach- 
ment from  this  pardoning  power  in  the  hands 
of  the  President  will  be  very  obvious  when  we 
come  to  consider  that  the  main  object  of  the 
impeachment  is  to  remove  the  person  from  office ; 
and  that  this  right  of  removal  would  exist  in  the 
President  without  the  necessity  of  impeachment ; 
and  that,  in  all  cases,  the  officer  impeached,  ex- 
cept it  be  the  President  himself,  is  one  who,  if  he 
belong  to  the  executive  branch  of  tlie  govern- 
ment, is  exercising  power  under  the  control  of 
the  President,  and  whom  the  President  may  for 
many  reasons  be  willing  to  protect  from  punish- 
ment by  his  pardon. 

The  power  of  the  President  to  make  treaties.  Power  to  make 
in  which  the  concurrence  of  two-thirds  of  the 
senators  present  when  the  treaty  is  voted  on 
shall  be  necessary,  is  one  which  is  essentially  of 
an  executive  character,  and  which  can  only  be 
w^isely  executed  under  the  control  of  the  execu- 
tive head  of  the  Government.  The  requirement 
of  two-thirds  of  the  Senate  for  the  final  ratifica- 
tion of  such  treaty  made  by  the  President,  or  his 
ministers,  shows  the  jealousy  of  the  influence  of 
foreign  nations  in  our  domestic  policy  which  was 
so  prevalent  at  the  time  the  Constitution  was 
adopted.  This  was  evidenced  in  other  respects  ; 
as  in  the  forbidding  of  the  acceptance  of  titles 

1  1  United  States  v.  Klein,  13  Wall.  128,  148.  This  general 
doctrine  is  subject  to  some  limitations  and  restrictions.  See  Note 
at  the  end  of  this  Lecture. 


168 


LECTUKES   ON    CONSTITUTIONAL   LAW. 


Lecture  III.  of  nobilitj  by  any  officer  of  the  Federal  Govern- 
PoweTto  mak^e  i^^eiit,  or  of  any  presents.  This  jealousy,  which 
treaties.  at  the  time  of  the  formation  of  the  Constitution, 

in  the  weakness  of  our  Government,  seems  justi- 
fiable, has  perhaps  long  passed  away  since  the 
Government  has  grown  so  wealthy  and  powerful, 
and  its  offices  so  valuable  ;  and  it  is  impossible 
to  conceive  now  of  an  officer  of  the  Government 
being  in  any  way  bribed  or  influenced  by  consid- 
erations of  honor  or  profit,  coming  from  other 
nations,  to  disregard  the  interests  of  his  own 
Government  by  favoring  the  conflicting  interests 
of  any  foreign  government. 

A  question  of  some  interest  has  arisen  in  re- 
gard to  the  power  of  the  President  and  the  Sen- 
ate to  make  a  treaty  with  a  foreign  nation  which 
shall  be,  according  to  the  declaration  of  the  Con- 
stitution, the  supreme  law  of  the  land,  in  cases 
to  which,  by  other  provisions  of  the  Constitution, 
it  would  seem  that  the  concurrence  of  the  House 
of  Representatives  is  essential  to  the  making  of 
a  valid  law.  This  question,  which  has  occasion- 
ally vexed  the  legislative  bodies  of  both  Houses 
of  Con2:ress  from  the  beojinnino;  of  the  Govern- 
ment,  but  in  regard  to  which  any  serious  diffi- 
culty has  been  averted  by  the  wisdom  and  for- 
bearance of  the  House  of  Representatives,  is  too 
large  to  be  entered  upon  on  this  occasion,  and  is 
perhaps  too  complex  to  justify  your  serious  con- 
sideration of  it  at  this  time.^ 
Dutytocommuni-      Xhc  duty  of  the  President  under  section  three, 

cate  information     ,-,/-,  -r.  ,-  £    ±r,       c^t    ^        £ 

to  Congress.        to  give  to  Congrcss  miormation  oi  the  fetate  oi 

1  1  See  Note  at  the  end  of  this  Lecture. 


EXECUTIVE  BRANCH  OF  TUE  GOVERNMENT.  169 

the  Union,  and  recommend  to  tlieir  considera-  lecture  hi. 
tion  such  measures  as  he  shall  iudo-e  necessary  ''"'  ^^^'■"^'^■•^- 

Jo  J    Uuty  tocoiiirnuni- 

and  expedient,  is  one  of  very  great  importance,  cate  information 
In  the  early  history  of  the  Government  this  duty  ^^  o^s'^e^s. 
was  generally  performed  by  a  personal  interview 
between  the  Executive  and  the  two  Houses  of 
Congress,  assembled  to  listen  to  him;  but  since 
Mr.  Jefferson's  time,  whose  skill  and  facility  in 
composition  induced  him  to  discharge  this  func- 
tion by  written  messages  to  Congress,  this  course 
has  been  invariably  followed.  Very  few  public 
events  are  looked  to  with  more  interest  by  the 
people  at  large,  as  well  as  all  those  engaged  in 
the  administration  of  the  Government,  than  the 
annual  message  which  the  President  sends  to 
Congress  at  the  beginning  of  each  session. 
These  messages  are  generally  considered  as 
defining  the  policy  of  the  Executive  in  regard 
to  the  administration  of  public  affairs  falling 
within  this  branch  of  the  Government,  as  also 
with  regard  to  such  legislation  as  he  thinks  the 
good  of  the  country  requires  at  the  hands  of 
Congress.  These  messages  have  had  a  varying 
degree  of  power  in  the  influence  which  they 
have  exerted  upon  the  legislation  of  Congress. 
In  years  past  the  recommendations  of  the  Presi- 
dent were  held  to  represent  the  opinions  of  the 
political  party  by  whom  he  was  elected,  and  of 
which  he  was  the  recognized  leader,  and  to  have 
almost  a  controllina;  influence  over  the  members 
of  that  party  in  the  two  branches  of  the  Legis- 
lature. So  that,  in  those  times,  a  recommenda- 
tion of  the  President  in  regard  to  a  matter  of 


170  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  III.       political  policy,  wlieii  the  two  Houses  of  Con- 
nie Executive,     ^^^gg  \\(iYe  ill  accord  with  him  in  party  politics, 

Duty  to  coiiiimini-  o  k         j    l  7 

eate  iiifoiiiiatiou  was  alniost  Omnipotent.  In  more  recent  years 
°  '  the  frecpient  recurrence  of  the  fact  that  a  ma- 
jority of  the  Senate  might  be  found  on  one  side 
of  such  party  divisions,  and  of  the  House  of  Rep- 
resentatives on  the  other,  has  tended  very  much 
to  diminish  the  influence  of  such  Presidential 
recommendations,  as  well  as  the  constantly 
recurring  fact  that,  in  regard  to  such  measures 
the  President  does  not  represent  in  all  instances 
the  entire  or  unanimous  opinion  of  his  own 
party,  in  which  in  one  House  or  the  other  there 
may  be  divisions  on  such  subjects. 

Power  to  call  The  powcr  of  the  President  to  convene  both 

extra  sessions  of     t-t  •  .^  r     ji  j  t 

Con<^ress.  Houscs,    or   either   oi    tliem,   on    extraordinary 

occasions,  has  been  rarely  exercised,  and  cer- 
tainly has  not  been  abused  during  the  history  of 
the  Government.  The  principal  exercise  of  this 
power  has  been  in  proclamations  by  which  the 
President  has  called  the  Senate  together  at  the 
close  of  a  session  of  Congress,  for  the  purpose 
of  considering  appointments  to  office,  and  some- 
times treaties. 

As  to  the  general  provisions  that  he  shall  take 
care  that  the  laws  be  faithfully  executed,  any 
comment  which  would  be  useful  would  extend 
this  lecture  beyond  the  limit  which  necessity 
imposes. 

The  only  other  provision  of  this  Second  Arti- 
cle of  the  Constitution  to  which  I  deem  it  nec- 
essary to  call  your  attention,  is  found  in  section 
four,  which  declares  :  — 


EXECUTIVE    BRANCH    OF    THE    GOVERNMENT.  171 

"  The  President,  Vice-President,  and  all  civil  lecture  mi. 
officers  of  the  United  States,  shall  be  removed  'l'''  '•••''-^"'7- 

'  Impeachment. 

from  office,  on  impeaclnnent  for,  and  conviction 
of,  treason,  bribery,  or  other  high  crimes  and 
misdemeanors." 

The  general  principles  on  which  an  impeach- 
ment of  any  officer  of  the  Government  may  be 
conducted  is  prescribed  by  other  provisions  of 
the  Constitution.  The  substance  of  them  is 
that  the  House  of  Representatives,  acting  in  the 
character  of  a  grand  inquest  of  the  nation,  may 
frame  and  prefer  articles  of  impeachment,  con- 
stituting the  charges  on  which  he  shall  be  tried 
before  the  Senate.  These  articles  are  delivered 
to  the  Senate,  which,  by  the  other  provisions  of 
the  Constitution,  shall  make  arrangements  for 
the  trial.  At  the  trial,  by  an  exceptional  pro- 
vision of  the  Constitution  in  recrard  to  the  Pres- 
ident  when  he  is  impeached,  the  Chief  Justice  of 
the  Supreme  Court  of  the  United  States  shall 
preside  ;  which  is  not  required  or  permitted  in 
the  impeachment  of  any  other  officer  of  the 
Government.  The  conviction  of  the  party  tried 
in  any  such  impeachment  can  only  be  declared 
by  a  vote  of  two-thirds  of  the  senators,  and 
judgment  only  extends  to  removal  from  office, 
and  a  disqualification  of  the  person  convicted 
from  holding  any  other  office  of  honor  or  profit 
under  the  Government  of  the  United  States. 

In  the  history  of  the  Government  under  the 
Constitution,  but  a  single  effort  to  impeach  a 
President  has  ever  been  made.  The  case  of 
President   Johnson,    against    whom    the    House 


172  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  III,  preferred  articles  of  impeachment,  was  tried  in 
impeachmenr  1^68,  and  tlic  proseciitlon  failed  of  conviction 
on  any  of  the  specifications  charged  against  him. 
Whatever  may  have  been  the  justice  of  the 
charges  made  against  President  Johnson,  looking 
back  as  we  now  do  with  much  of  the  asperity 
of  the  time  at  which  it  took  place  removed,  it 
may  safely  be  said  that  the  failure  to  convict 
him  was  mainly  to  be  attributed  to  the  belief  in 
the  minds  of  many  senators  that  the  charges,  if 
true,  were  not  of  a  character  for  which  impeach- 
ment is  provided  in  the  Constitution,  and  not 
from  a  want  of  belief  in  the  truth  of  some  of 
those  charges.  It  may  also  be  said  that,  in  view 
of  the  invitation  which  a  successful  result  in 
that  effort  to  convict  and  remove  him  would 
have  held  out  in  future  times  to  exasperated 
majorities  in  the  legislative  body,  opposed  to 
the  President  and  his  manner  of  exercising  the 
functions  with  which  he  is  charged  by  the  Con- 
stitution, to  get  rid  of  a  President  against  whom 
such  personal  hostility  existed,  the  country  is 
fortunate  in  the  fact  that  the  great  impeachment 
failed.  A  certain  degree  of  security  in  the  sta- 
bility of  his  power  for  the  short  period  for  which 
he  is  elected  is  absolutely  essential  to  the  suc- 
cessful and  conscientious  discharge  of  executive 
duties  by  the  President ;  and  the  easy  exercise  of 
the  power  of  impeachment  and  a  frequent  recur- 
rence to  it  might  impress  upon  him,  if  the  causes 
of  impeachment  were  not  of  the  profoundest 
gravity,  a  hesitation  and  a  want  of  courage  in 
the  conscientious  discharge  of  his  duties  which 


EXECUTIVE  BRANCH  OF  THE  GOVERNMENT.  173 

would  be  in  many  cases  disastrous  to  the  public  lecture  iu. 
service.  V'''  '^-'■•''^"''^^- 

ImpcacbiiienU 

There  remains  to  be  considered  a  very  im-  veto  power, 
portant  duty  imposed  upon  the  President  by  the 
Constitution,  by  which  in  effect  he  becomes  a 
part  of  the  legislative  power  of  the  nation. 
This  is  to  be  found  in  paragraph  two,  of  section 
seven  of  the  first  Article,  and  is  commonly  called 
the  veto  power.     It  reads  as  follows  :  — 

"  Every  bill,  which  shall  have  passed  the 
House  of  Representatives  and  the  Senate,  shall, 
before  it  become  a  law,  be  presented  to  the 
President  of  the  United  States ;  if  he  approve, 
he  shall  sign  it,  but  if  not  he  shall  return  it, 
with  his  objections,  to  that  House  in  which  it 
shall  have  originated,  who  shall  enter  the  ob- 
jections at  large  on  their  journal,  and  proceed  to 
reconsider  it.  If,  after  such  reconsideration,  two- 
thirds  of  that  House  shall  agree  to  pass  the  bill, 
it  shall  be  sent,  together  with  the  objections,  to 
the  other  House,  by  which  it  shall  likewise  be 
reconsidered,  and  if  approved  by  two  thirds  of 
that  House,  it  shall  become  a  law.  But  in  all 
such  cases  the  votes  of  both  Houses  shall  be 
determined  by  yeas  and  nays,  and  the  names  of 
the  persons  voting  for  and  against  the  bill  shall 
be  entered  on  the  journal  of  each  House,  respec- 
tively. If  any  bill  shall  not  be  returned  by  the 
President  within  ten  days  (Sunday's  excepted) 
after  it  shall  have  been  presented  to  him,  the 
same  shall  be  a  law,  in  like  manner  as  if  he  had 
signed  it,  unless  the  Congress,  by  their  adjourn- 


174  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  III.      iTient,  prevent  its  return,  in  which  case  it  shall 

The  Executive.       j.ot  be  a  laW."  ^ 
Veto  power. 

Of  the  wisdom  of  this  part  of  the  Constitution, 
it  is  not  my  purpose  to  speak.  Upon  each  oc- 
casion of  its  exercise  the  anger  of  those  who 
have  supported  the  measure  which  the  President 
disapproves  has  been  aroused,  and  ill-natured 
and  inconsiderate  remarks  upon  such  occasions 
would  lead  to  the  belief  that  this  provision  is 
very  generally  disliked ;  but  after  all,  the  infre- 
quency  of  its  exercise,  and  the  wisdom  with 
which  it  has  generally  been  done,  has  led  to  its 
approval  by  wise  and  considerate  men  not  influ- 
enced by  passion,  and  its  tolerance  by  the  public 
has  grown  with  the  increasing  years  of  the  ex- 
istence of  the  Government. 

In  fact,  there  are  those  who  are  anxious  for 
an  amendment  to  the  Constitution  by  which  the 
President  may  be  permitted  to  exercise  this  veto 
power,  in  regard  to  specific  items  or  parts  of  a 
bill  presented  to  him  without  being  compelled 
to  approve  or  reject  the  bill  as  a  whole,  while 
there  are  objectionable  parts  in  it  which  could 
be  separated  and  disapproved  by  hira.^  Such  is 
the  constitution  of  the  State  of  New  York  in 
regard  to  the  power  of  the  governor ;  and  other 
States  have  recently  adopted  the  same  principle. 

It  has  been  contended  that  the  only  proper 
occasion  for  the  President  to  deny  his  approval 
by  a  message  to  Congress,  refusing  to  sign  a 
bill,  is,  when  the  bill  is  not  in  his  judgment 

1  See  Note  at  the  end  of  this  Lecture.  ^  i\) 


EXECUTIVE    BRANCH    OF    THE    GOVERNMENT.  175 

within  the  constitutional  power  of  the  Legisla-  lecture  hi. 
ture  In  such  case  it  has  been  tliought  to  he '{?"j:^^j^^''^"J^^ 
his  duty  to  interpose  his  objection,  and  the  doc- 
trine has  been  advanced  with  much  earnestness, 
that  on  no  other  account  is  he  justified  in  setting 
up  his  opposition  to  the  more  popular  legislative 
branch  of  the  Government. 

This  view,  however,  has  not  been  accepted  in 
modern  times,  and  Presidents  within  the  last 
thirty  or  forty  years  have  apparently  exercised 
the  veto  power  with  as  much  freedom  in  regard 
to  questions  of  mere  expediency  and  wisdom  of 
legislation,  as  of  constitutional  invalidity.  Un- 
doubtedly there  is  a  just  medium  on  this  subject, 
and  it  is  probable  that  a  sound  view  would  be 
that  the  occasion  which  requires  or  justifies  the 
President  in  returning  without  his  approval  a 
bill  passed  by  both  Houses  of  Congress,  with  his 
objections  thereto,  should  be  of  a  grave  and  seri- 
ous character,  and  the  measure  itself  one  of  much 
public  importance.  There  remains  to  the  Presi- 
dent, in  all  cases,  the  alternative  of  declining  to 
sign,  and  failing  to  veto  a  bill,  and  thus  permit- 
ting it  by  the  lapse  of  ten  days,  without  any 
action  on  his  part,  to  become  a  law  of  the  land 
upon  the  sole  responsibility  of  its  passage  by  the 
Senate  and  House  of  Representatives.  This  has 
been  done  occasionally  by  Presidents,  and  it  is 
rather  curious  that  of  the  many  bills  presented 
to  the  Executive  for  his  approval,  of  the  pro- 
priety of  which  he  must  have  serious  doubts  and 
in  regard  to  which  he  might  be  unwilling  to 


176  LECTURES    ON    CONSTITUTIONAL    LAW. 

LECTURE  III.       interpose  this  power  reposed  in  him  alone,  he 
The  Executive,     j^^^g  ^^  seldom  rcsorted  to  the  expedient  of  in- 

Veto  power.  ...  . 

action,  leaving  the  responsibility  with  the  legis- 
lative branch  proper  of  the  Government. 


pointiiij 
power. 


NOTES   UPON   LECTURE   III. 


1.    The  Appointing  Poioer. 

The  difficulty  in  regard  to  appointments  lkcture  hi. 
which  Judge  Miller  suggests,  began  in  the  very  "^w" 
beginning  of  the  new  government.  At  an  early 
day  in  his  first  term  Washington  Avrote  to  a 
friend  who  had  solicited  an  office  for  another: 
"  From  the  moment  when  the  necessity  had 
become  more  apparent,  and,  as  it  were,  inevita- 
ble, I  anticipated,  with  a  heart  full  of  distress, 
the  ten  thousand  embarrassments,  perplexities, 
and  troubles,  to  which  I  must  again  be  exposed 
in  the  evening  of  a  life  already  nearly  con- 
sumed in  pul)lic  cares.  Among  all  these  anxie- 
ties, I  will  not  conceal  from  you,  I  anticipated 
none  greater  than  those  which  were  likely  to  be 
produced  by  applications  for  appointments  to 
the  different  offices  which  would  be  created 
under  the  new  government.  Nor  will  I  con- 
ceal that  my  apprehensions  have  already  been 
but  too  well  justified.  Scarcely  a  day  passes  in 
which  applications  of  one  kind  or  another  do  not 
arise ;  insouiuch  that,  had  I  not  early  adopted 
some  general  principles,  I  should  before  this 
time  have  been  wholly  occupied  in  this  business. 
As  it  is,  I  have  found  the  number  of  answers 

177 


178  *     LECTURES    ON    CONSTITUTIONAL   LAW. 

Lecture  III.      which  I  havG  been  necessitated  to  give  in  my  own 
power"*'"^  liand,  an  almost  insupportable  burden  to  me.^" 

2.  Appointments  to  Vacancies  during  the  Recess. 

Vacancies  during       A  questiou  lias  been  made  as  to  the  power  of 
t  e  recess.  ^^^^  President  to  fill  an  office  during  the  recess 

of  Congress,  which  was  created  by  the  legisla- 
tive body  at  its  session  immediately  before  that 
recess.  In  practice  this  has  been  frequently 
done ;  and  the  better  opinion  would  seem  to  be 
that  it  has  been  rightfully  done. 

3.  Heads  of  Executive  Departments. 

Heads  of  Execu-        "  There  cau  be  no  doubt  that  the  President, 
tive  uepartnieuts.  -^^  ^j,^^  excrcisc  of  liis  cxccutivc  powcr  Under  the 

Constitution,  may  act  through  the  head  of  the 
appropriate  executive  department.  The  heads 
of  departments  are  his  assistants  in  the  perform- 
ance of  his  executive  duties,  and  their  official 
acts,  promulgated  in  the  regular  course  of  busi- 
ness, are  presumptively  his  acts.  That  has  been 
many  times  decided  by  this  court."  ^ 

But  when  the  action  required  of  the  President 
is  judicial  in  character,  not  administrative,  as 
when  the  duty  is  imposed  upon  him  of  review- 
ing the  proceedings  of  Courts  Martial,  he  must 
himself  consider  the  proceedings  laid  before  him, 
and  decide  personally  whether  they  ought  to  be 
carried  into  effect.^    But  this  judgment,  although 


1  Sparks's  Life  nf  Washington,  454. 

2  Bunkle  v.  United  States,  122  U.  S.  543,  557.  »  lb. 


NOTES    UPON    LECTURE    III.  17 'J 


his  personal  act  in  fact,  and  not  presumptively,  lecture  hi. 

Heads  of  Exei 
tive  Departments. 


need  not  be  attested  by  his  sign  manual,  in  order  "*^'*^'**  "^  Exei-u- 


to  be  effective.^ 

4.    Pardons. 

In  Hart  v.  United  States  the  effect  of  a  par-  Pardons. 
don  on  the  right  to  sue  in  the  Court  of  Claims 
was  again  before  the  court.  Hart,  who  was  a 
resident  in  Texas,  joined  the  insurgents  in  April, 
1861,  "  and  then  and  afterwards  furnished  them 
with  supplies,  money,  and  means  of  transporta- 
tion to  carry  on  their  invasion  and  campaign 
into  New  Mexico.  On  the  3d  of  November, 
1865,  the  President  granted  to  him  a  full  par- 
don and  amnesty  for  all  offences  committed  by 
him,  arising  from  participation,  direct  or  implied, 
in  the  rebellion.  Hart  claimed  certain  sums  as 
due  to  him  for  flour,  corn,  and  forage  delivered 
to  the  United  States  before  April  13,  1861,  and 
certain  sums  for  flour,  corn,  and  forage  delivered 
after  that  date." 

"  The  Court  of  Claims  applied  to  those  de- 
mands of  the  claimant  which  accrued  before 
April  13,  1861,  the  provisions  of  joint  resolu- 
tion No.  46,  approved  March  2,  1867,  14  Stat. 
571,  now  embodied  in  section  3480  of  the 
Revised  Statutes,  forbidding  the  payment  of 
claims  against  the  United  States,  'which  accrued 
or  existed  prior  to  the  thirteenth  day  of  April, 
A.D.  eighteen  hundred  and  sixty-one,  in  favor  of 
any  person  who  promoted,  encouraged,  or  in  any 

1  United  States  v.  Page,  137  U.  S.  673,  678,  by  Chief  Justice 
Fuller. 


180  LECTURES    ON    CONSTITUTIONAL    LAW. 

lbpture  III.       manner   sustained  the  late  rebellion,'  etc.,  and 
Pardons.  further  providing  that  no  pardon  should  'author- 

ize the  payment  of  such  account,  claim,  or 
demand,  until  this  resolution  is  modified  or 
repealed.' 

"  It  was  urged  before  the  Court  of  Claims  that 
the  pardon  and  amnesty  granted  by  the  Presi- 
dent to  Hart  on  the  3d  of  November,  1865,  'for 
all  offences  committed  by  him  arising  from  par- 
ticipation, direct  or  implied,  in  the  rebellion,' 
operated  to  set  aside  the  provisions  of  the  joint 
resolution  as  to  him  and  his  claims.  The  court 
held  otherwise.  Its  view  was  that  Hart  was 
guilty  of  numerous  acts  for  which  he  could,  on 
conviction,  have  been  punished  in  his  person  and 
his  property,  and  that  the  pardon  freed  him  from 
liability  for  those  offences ;  that  his  disability  to 
•'receive  from  the  United  States  a  debt  due  to  him 
•'was  not  a  consequence  attached  to  or  arising  out 
iof  any  such  offence  3  that  it  grew  out  of  the  fact, 
stated  in  the  joint  resolution,  that  he  had  been 
a  public  enemy ;  that  every  disability  which  a 
state  of  war  imposed  upon  him  was  removed  by 
the  cessation  of  the  war ;  that  it  needed  no  par- 
don to  effect  that  result ;  that,  as  the  pardon 
conferred  upon  him  no  new  right,  so  the  joint 
resolution  did  not  take  from  him  anything  which 
>the  pardon  had  conferred ;  that  it  did  not,  like 
the  legislation  considered  in  United  States  v. 
Klein,  13  Wall.  128,  attempt  to  prescribe  to  the 
judiciary  the  effect  to  be  given  to  a  pardon,  in 
regard  to  a  matter  to  which  the  pardon  extended, 
but  merely  forbade  certain  debts  to  be  paid,  un- 


NOTES    UPON    LECTURE    III.  181 

til  Congress  should  otherwise  order  ;  and  that  a  lecture  hi. 
creditor  of  the  United  States  can  only  be  paid  in  ^'^"■'^o°«- 
accordance  with  the  provision  of  the  Constitu- 
tion (Art.  I,  sec.  9,  subd.  7),  which  declares  that 
\  'no  money  shall  be  drawn  from  the  treasury, 
but  in  consequence  of  ai)propriations  made  by 
law.'  .  .  .  We  are  of  opinion  that  the  judgment 
of  the  Court  of  Claims  was  right."  ^ 

5.    Treaties  providing  for  payment  of  moneys. 

Whether  a  treaty,  providing  for  the  payment  Treaties  provid- 
of  money  by  the  United  States,  makes  it  obliga-  oI'mOTey^™^" 
tory  upon  Congress  to  pass  the  necessary  appro- 
priation, is  a  question  that  has  been  more  than 
once  mooted. 

When  the  treaty  of  1794  with  Great  Britain, 
known  as  Jay's  Treaty,  was  sent  to  the  House 
by  President  Washington,  that  body,  on  the 
motion  of  Mr.  Edward  Livingston,  asked  the 
President  to  transmit  to  it  a  copy  of  the  instruc- 
tions to  Mr.  Jay,  and  of  the  correspondence  and 
documents  relating  to  the  treaty.  This  motion 
was  resisted  by  the  Federalists,  on  the  ground 
that  the  treaty  had  become  the  supreme  law, 
and  that  the  House  had  no  jurisdiction  over  a 
question  which  had  been  settled  elsewhere  under 
the  Constitution.  Notwithstanding  the  opposi- 
tion the  resolution  was  adopted.  In  reply  the 
President  said  :  "  Having  been  a  member  of  the 
General  Convention,  and  knowing  the  principles 
upon  which  the  Constitution  was  formed,  I  have 

1  Hart  V.  United  States,  118  U.  S.  G2,  64,  Go,  66. 


182 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  III. 
Treaties  provid- 
iiijj  for  payment 
of  luoueys. 


ever  entertained  but  one  opinion  on  tliis  subject, 
and  from  the  first  establishment  of  this  Govern- 
ment to  this  moment,  my  conduct  has  exempU- 
fied  that  opinion ;  that  the  power  of  making 
treaties  is  exclusively  vested  in  the  President, 
by  and  with  the  advice  and  consent  of  the  Sen- 
ate, provided  two-thirds  of  the  senators  present 
concur ;  and  that  every  treaty  so  made  and  pro- 
mulgated thenceforward  becomes  the  law  of  the 
land.  .  .  .  As,  therefore,  it  is  perfectly  clear 
to  my  understanding  that  the  assent  of  the 
House  of  Representatives  is  not  necessary  to  the 
validity  of  a  treaty ;  as  the  treaty  with  Great 
Britain  exhibits  in  itself  all  the  objects  requiring 
legislative  provision,  and  on  these  the  papers 
called  for  can  throw  no  light,  and  as  it  is  essen- 
tial to  the  due  administration  of  the  Government 
that  the  boundaries  fixed  by  the  Constitution 
between  the  different  departments  should  be  pre- 
served—  a  just  regard  to  the  Constitution  and 
to  the  duty  of  my  office,  under  all  the  circum- 
stances of  this  case,  forbid  a  compliance  with 
your  request."^ 

The  House  replied  to  this  by  resolving  that 
when  it  made  application  to  the  Executive  for 
information  it  was  not  necessary  "  that  the  pur- 
pose for  which  such  information  may  be  wanted, 
or  to  which  the  same  may  be  applied,  should  be 
stated  in  the  application."  ^  This  may  have  been 
the  work  of  Madison,  who  wrote  Jefferson,  "  The 
absolute  refusal  was  as  unexpected  as  the  tone 


1  Annals  1st  Session,  4th  Congress,  761,  762. 

2  Annals  1st  Session,  4th  Congress,  771,  772. 


NOTES    UPON    LECTURE    HI.  18o 

and    tenor  of    the    message    are   improper   and  lkctvrk  hi. 
indelicate."  '    After  a  long  and  animated  debate,  '^"'f''  p'""'*^' 
the  House  resolved,  by  a  vote  of  51  to  48,  that  of  moneys, 
legislation  ought    to   be    had   for    carrying   the 
treaty  into  elt'ect.^ 

Similar  questions  came  up  in  1803,  when  Mr. 
Jefferson  asked  appropriations  for  carrying  out 
the  treaty  for  the  purchase  of  Louisiana.  Con- 
gress granted  the  money .^ 

In  1816  the  Senate  passed  an  act  to  carry 
mto  effect  the  commercial  convention  of  1815, 
with  Great  Britain.  The  substance  of  this  act 
was  that  so  much  of  any  existing  act  as  might 
be  contrary  to  the  provisions  of  the  convention 
should  be  deemed  and  taken  to  be  of  no  effect. 
The  House  passed  an  act,  reenacting,  seriathn, 
the  provisions  of  the  treaty.  Each  body  refused 
to  recede.  The  Senate  maintained  that,  as  the 
treaty  was  operative  of  itself,  the  act  should  be 
declaratory  only.  The  House  contended  that 
legislation  was  necessary.  A  committee  of  con- 
ference was  appointed,  Rufus  King  being  chair- 
man on  the  part  of  the  Senate  and  John  Forsyth 
on  the  part  of  the  House.  The  principle  of  the 
settlement  was  thus  stated  to  the  House  by  For- 
syth :  "  Your  committee  understood  the  com- 
mittee of  the  Senate  to  admit  the  principle 
contended  for  by  the  House,  that  whilst  some 
treaties  might  not  require,  others  may  require 
legislative  provision  to  carry  them  into  effect; 
that  the  decision  of  the  question  how  far  such 

1  Madison  to  Jefferson,  April  4, 1796.     2  Madison's  Writings,  89. 

2  Annals  1st  Session,  4th  Congress,  1291. 

3  2  Wharton's  Int.  Dig.  19. 


184  LECTURES    ON    CONSTITUTIONAL    LAW. 

le(  ruKE  III.       provision  was  necessary  must  be  founded  upon 
Treaties  pruvid-    ^^iq  peculiar  cliaractcr  of  tlie  treaty  itself."  '    The 

iiig  for  payment  ■■-  "^ 

of  moneys.  bill  agreed  upon  was  enacted.''^ 

In  184o  a  commercial  treaty  was  concluded 
with  the  German  States  containing  provisions  in 
regard  to  rates  of  duties.  The  Senate  Commit- 
tee on  Foreign  Relations  made  an  adverse  report 
on  the  ground  of  the  ''  want  of  constitutional 
competency"  to  make  it;  and  the  Senate  laid 
the  subject  indefinitely  on  the  table.  Mr.  Cal- 
houn, then  Secretary  of  State,  said  :  "•  If  this  be 
a  true  view  of  the  treaty-making  power,  it  may 
be  truly  said  that  its  exercise  has  been  one  con- 
tinual series  of  habitual  and  uninterrupted  in- 
fringements of  the  Constitution.  From  the 
beginning,  and  throughout  the  whole  existence 
of  the  Federal  Government,  it  has  been  exercised 
constantly  on  commerce,  navigation,  and  other 
delegated  powers."  ^ 

Tlie  subject  was  again  before  Congress  when 
the  bill  making  appropriations  for  the  purchase 
of  Alaska  was  under  consideration.  It  was 
elaborately  discussed  in  the  House.  In  the  end 
that  body  accepted  a  report  from  a  conference 
committee  containing  a  resolution  with  a  pre- 
amble reciting  that  "  the  stipulations  of  the 
treaty  cannot  be  carried  into  full  force  and  ef- 
fect, except  by  legislation  to  Avliich  the  consent 
of  both  Houses  is  necessary."  ^ 

1  Introductory  note,  Treaties  and  Convention  of  the  United 
States  with  other  powers,  orig.  ed.  p.  944. 

2  3  Stat.  255,  c.  22.  3  2  Wharton's  Int.  Dig.  20,  2L 

*  Introductory  note.  Treaties  and  Conventions,  orig.  ed.  p.  944. 
See  also  2  Wharton's  Int.  Dig.  21. 


NOTES    UPON    LECTURE    III.  185 

6.    Ojrinions  hy  Heads  of  Departments. 
Such  opinions  have  been  required  in  two  not-  lkcture  hi. 

able    instances.  Opinions  ..y  heads 

of  dcpartmeuts. 

In  April,  1793,  President  Washington  sent  a 
circular  letter  to  each  member  of  his  cabinet 
stating  that  ''  the  posture  of  affairs  in  Europe, 
particularly  between  France  and  Great  Britain, 
places  the  United  States  in  a  delicate  situation, 
and  requires  much  consideration  as  to  the  meas- 
ures which  it  will  be  proper  for  them  to  observe 
in  the  war  between  those  powers."  He  asked  to 
have  the  questions  considered  preparatory  to  a 
meeting  the  next  day,  when  he  should  expect  to 
receive  "  the  result  of  their  reflections."  ^  Thir- 
teen questions  were  enclosed^  relating  to  the 
issue  of  a  proclamation  of  neutrality,  to  the  then 
relations  between  France  and  the  United  States, 
and  to  the  binding;  force  of  treaties  with  France 
concluded  during  the  War  of  the  Revolution. 

Mr.  Jefferson  has  left  an  account  of  the  meet- 
ing of  the  cabinet  in  which  these  questions  were 
answered  seriatim  and  individually.^  "  It  was 
determined  by  all,  on  the  first  question,  that  a 
proclamation  shall  issue,  forbidding  our  citizens 
to  take  part  in  any  hostilities  on  the  seas,  with 
or  against  any  of  the  belligerent  powers ;  and 
warning  them  against  carrying  to  any  such 
powers  any  of  those  articles  deemed  contraband, 
according  to  the  modern  usage  of  nations ;  and 

1  10  Sparks'  Washington,  337. 

2  10  Sparks'  Washington,  533. 
8  9  Jefferson's  AVorks,  U2. 


186  LECTURES    ON    CONSTITUTIONAL    LAW. 

lecturk  III.       enjoining  them  from   all   acts  and   proceedings 
opimotib  y  lea  b  j^j^^Q^^^i^^yi^t  witli  the  diitics  of  a  friendly  nation 

of  depaitinents.  -J 

towards  those  at  war.  On  the  second  question, 
'-  Shall  a  minister  from  the  Republic  of  France 
be  received  ? '  it  was  unanimously  resolved  that 
he  shall  be  received.  The  remaining  questions 
were  postponed  for  further  consideration."  ^ 

In  August,  1873,  this  constitutional  jDower  was 
again  exercised  by  President  Grant.  He  sent 
to  each  member  of  his  cabinet  seven  questions 
on  the  subject  of  expatriation,  and  received  let- 
ters in  reply  from  all.  With  his  annual  message 
to  Congress  on  the  following  December  he  trans- 
mitted this  correspondence,  saying :  "  I  invite 
the  earnest  attention  of  Congress  to  the  existing 
laws  of  the  United  States  respecting  expatriation 
and  the  election  of  nationality  by  individuals. 
.  .  .  Persons  who  have  never  resided  within  the 
United  States  have  been  enabled  to  put  forward 
a  pretension  to  the  protection  of  the  United 
States  against  the  claim  to  military  service  of 
the  government  under  whose  protection  they 
were  born  and  have  been  reared.  In  some  cases 
even  naturalized  citizens  of  the  United  States 
have  returned  to  the  land  of  their  birth,  with 
intent  to  remain  there,  and  their  children,  the 
issue  of  a  marriage  contracted  there  after  their 
return,  and  who  have  never  been  in  the  United 
States,  have  laid  claim  to  our  protection  when 
the  lapse  of  many  years  had  imposed  upon  them 
the  duty  of  military  service  to  the  only  govern- 
ment which  had  ever  known  them  personally. 

1  10  Sparks'  Washington,  534. 


NOTES    UPON    LECTUKE    111.  187 

.  .  .  For  my  own  guidance,  in  determining  such^.KrrijRK  ni. 
questions,  I  required  (under  the  provisions  ^f '*'7'""V''' 'T'' 
the  Constitution)  the  opinion  in  writing  of  the 
principal  officer  in  each  of  the  executive  depart- 
ments upon  certain  questions  rehiting  to  this 
subject.  The  result  satisfies  me  that  further 
legislation  has  become  necessary.  I  therefore 
connnend  the  subject  to  the  careful  consider- 
ation of  Congress,  and  I  transmit  herewith 
copies  of  the  several  opinions  of  the  principal 
officers  of  the  executive  departments,  together 
with  other  correspondence  and  pertinent  infor- 
mation on  the  same  subject."  ^ 

7.    Power  to  approve  an  act  after  the  adjourn- 
ment of  Congress. 

On  the  3d  of  March,  1863,  Congress  passed  Approval  of  an 
"  an  act  to  provide  for  the  collection  of  aban-  ^^^^^^  ilsTdimira- 
doned  property,  and  for  the  prevention  of  frauds  meut. 
in   insurrectionary  districts  within   the  United 
States."     On  the  4th  of  March  that  Congress 
was  adjourned  sine  die  under  the  Constitution, 
and  that  act  had  not  received  the  signature  of 
the  President.     On  the  12th  of  the  same  March 
(within  the  ten  days)  President  Lincoln  signed 
it,  and  it  was  printed  with  the  other  acts  of  that 
Cong-ress.^ 

Under  its  operation  a  large  amount  of  prop- 
erty came  into  the  possession  of  the  Executive ; 
but  it  was  not  thought  wise  to  attempt  to 
administer  upon  it  in  the  courts,  without  a 
recognition    by   the   law-making   power,  which 

1  Foreign  Relations,  1873,  pp.  vi,  vli,  1185.      2  12  Stat.  820,  c.  120. 


188 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  III. 
Approval  of  an 
act  of  Congress 
after  its  adjourn- 
ment. 


♦should  practically  amount  to  its  reenactment. 
Accordingly  Congress,  on  the  20tli  of  July,  1864, 
p'assed  "  an  act  in  addition  to  the  several  acts 
concerning  commercial  intercourse  between  loyal 
and  insurrectionary  States,  and  to  provide  for 
the  collection  of  captured  and  abandoned  prop- 
erty, and  the  prevention  of  frauds  in  States 
declared  in  insurrection.  This  statute  practi- 
cally reenacted  the  previous  act  with  amend- 
ments, and  thus  disposed  of  the  difficulty."  ^ 


Partial  veto. 


8.    Partial  Veto. 

President  Grant,  in  his  annual  message  of 
December  1, 1873,  recommended  the  adoption  of 
an  amendment  to  the  Constitution,  "  To  author- 
ize the  Executive  to  approve  of  so  much  of  any 
measure  passing  the  two  Houses  of  Congress  as 
his  judgment  may  dictate,  without  approving 
the  whole  ;  the  disapproved  portion  or  portions 
to  be  subjected  to  the  same  rules  as  now,  to  wit, 
to  be  referred  back  to  the  House  in  which  the 
measure  or  measures  originated,  and,  if  passed 
by  a  two-thirds  vote  of  the  two  Houses,  then  to 
become  a  law  without  the  approval  of  the  Presi- 
dent." He  added :  "  I  would  add  to  this  a  pro- 
vision that  there  should  be  no  legislation  by 
Congress  during  the  last  twenty-four  hours  of 
its  sitting,  except  upon  vetoes,  in  order  to  give 
the  Executive  an  opportunity  to  examine  and 
approve  or  disapprove  bills  understandingly." 
Congress  took 'no  action  on  this  recommendation. 


1  13  Stat.  375,  c.  225. 


lY. 

THE  SEPARATE  POWERS  OF  THE  SEN- 
ATE AND  THE  HOUSE  OF  REPRE- 
SENTATIVES.i 


Article  I,  Section  5.  Each  House  shall  be  the  Lkcture  IV. 
Judge  of  the  Elections,  Returns  and  Qualitications  of 
its  own  Members,  and  a  Majority  of  each  shall  consti- 
tute a  Quorum  to  do  Business  ;  but  a  smaller  Number 
may  adjourn  from  day  to  day,  and  may  be  authorized 
to  compel  the  Attendance  of  absent  Members,  in  such 
Manner,  and  under  such  Penalties  as  each  House  may 
provide. 

Each  Plouse  may  determine  the  Rules  of  its  Pro- 
ceedings, punish  its  Members  for  disorderly  Behav- 
iour, and,  with  the  Concurrence  of  two-thirds,  expel 
a  Member. 

Each  House  shall  keep  a  Journal  of  its  Proceed- 
ings, and  from  time  to  time  publish  the  same,  except- 
ing such  Parts  as  may  in  their  Judgment  require 
Secrecy;  and  the  Yeas  and  Nays  of  the  Members  of 
either  House  on  any  question  shall,  at  the  Desire  of 
one-fifth  of  those  Present,  be  entered  on  the  Journal. 

Neither  House,  during  the  Session  of  Congress, 
shall,  without  the  Consent  of  the  other,  adjourn  for 
more  than  three  days,  nor  to  any  other  Place  than 
that  in  which  the  two  Houses  shall  be  sitting. 

Article  I,  Section  2,  Paraokai'H  fj.  The  House 
of  Representatives  shall  chuse  their  Speaker  and  other 
OiBcers  ;  and  shall  have  the  sole  Power  of  Impeach- 
ment. 

Article  I,  Section  7.  All  Bills  for  raising  Reve- 
nue shall  originate  in  the  House  of  Representatives ; 

1  This  is  Lecture  III  of  the  Lectures  delivered  before  the  classes 
of  the  University  Law  School, 

189 


190  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  IV.  but  the  Senate  may  propose  or  concur  with  Amend- 

ments as  on  other  Bills. 

Extract  from  the  Twelfth  Amendment.  The 
person  having  the  greatest  number  of  votes  for  Presi- 
dent, shall  be  the  President,  if  such  number  be  a 
majority  of  the  whole  number  of  P^lectors  appointed  ; 
and  if  no  person  have  such  majority,  then  fi'om  the 
persons  having  the  highest  numbers  not  exceeding 
three  on  the  list  of  those  voted  for  as  President,  the 
House  of  Representatives  shall  choose  immediately, 
by  ballot,  the  President.  But  in  choosing  the  Presi- 
dent, the  votes  shall  be  taken  by  states,  the  repre- 
sentation from  each  state  having  one  vote  ;  a  quorum 
for  this  purpose  shall  consist  of  a  member  or  mem- 
bers from  two-thirds  of  the  states,  and  a  majority  of 
all  the  states  shall  be  necessary  to  a  choice.  And  if 
the  House  of  Representatives  shall  not  choose  a  Presi- 
dent whenever  the  right  of  choice  shall  devolve  upon 
them,  before  the  fourth  day  of  March  next  following, 
then  the  Vice-President  shall  act  as  President,  as  in 
the  case  of  the  death  or  other  constitutional  disability 
of  the  President. 

Article  I,  Section  3,  Paragraphs  4,  5  and  6. 
Tlie  Vice-President  of  the  United  States  shall  be 
President  of  the  Senate,  but  shall  have  no  Vote, 
unless  they  be  equally  divided. 

The  Senate  shall  chuse  their  other  officers,  and 
also  a  President  pro  tempore,  in  the  Absence  of  the 
Vice-President,  or  when  he  shall  exercise  the  Office  of 
President  of  the  United  States. 

The  Senate  shall  have  the  sole  Power  to  try  all 
Impeachments.  When  sitting  for  that  Purpose,  they 
shall  be  on  Oath  or  Affirmation.  When  the  Presi- 
dent of  the  United  States  is  tried,  the  Chief  Justice 
shall  preside :  And  no  Person  shall  be  convicted  with- 
out the  Concurrence  of  two-thirds  of  the  Members 
present. 

Article  II,  Section  4.  The  President,  Vice-Presi- 
dent and  all  civil  Officers  of  the  United  States,  shall 
be  removed  from  Office  on  Impeachment  for,  and 
Conviction  of.  Treason,  Bribery,  or  other  high  Crimes 
and  Misdemeanors. 

Article  II,  Section  2,  Paragraph  2.  He  [tlie 
President]  shall  have  Power,  by  and  with  the  Advice 
and  Consent  of  the  Senate,  to  make  Treaties,  provided 
two-thirds  of  the  Senators  present  concur ;  and  he 
shall  nominate,    and    by  and  with  the  Advice    and 


SEPAKATE    POWERS    OF    EACH    HOUSE.  101 

• 

Consent  of  the    Senate,  sliall  appoint  Anil)assa(lnrs,  Lecture  IV. 

other  public    Ministers  and  Consuls,  Judges  of   the 

supreme  Court,  and  all  other  Officers  of  the  United 

States,  whose  Appointments  are  not  herein  otherwise 

provided  for,  and  which  shall  be  established  by  Law : 

but  the  Congress  may  by  Law  vest  the  Appointment 

of  such  inferior  Officers,  as  they  think  proper,  in  the 

President  alone,  in  the    Courts    of   Law,  or  in  the 

Heads  of  Departments. 

Of  the  powers  conferred  upon  the  General  Congress. 
Government  by  the  Constitution  of  the  United 
States  much  the  most  important  are  those  given 
to  the  legislative  body.  Many  if  not  nearly  all 
of  the  powers  of  the  executive  and  judicial 
branches  of  the  Government  are  regulated  in 
the  manner'of  their  exercise  by  the  laws  enacted 
by  this  body,  called  the  Congress.^  It  is  made 
to  consist  of  two  branches,  the  Senate  and  the 
House  of  Representatives ;  and  there  is  confided 
to  the  President  a  limited  right  to  control  the 
action  of  these  two  Houses  by  the  exercise  of 
the  veto  power.     Each  House  of  Congress  has 

1  In  England,  from  whence  most  of  our  legal  principles  and  leg- 
islative notions  are  derived,  the  authority  of  Parliament  is  tran- 
scendant  and  has  no  bounds.  ...  It  can  change  and  create  afresh 
even  the  constitution  of  the  kingdom  and  of  Parliament  itself. 
It  can,  in  short,  do  everything  that  is  not  naturally  impossible. 
Vanhorne''s  Lessee  v.  Dorrance,  2  Dall.  304,  307. 

It  is  a  fundamental  principle  with  English  lawyers,  that  Parlia- 
ment can  do  everything  except  making  a  woman  a  man,  or  a  man 
a  woman.     De  Lolme,  Constitution  of  England,  p.  135. 

Tlie  first  meeting  of  the  Commons  in  a  separate  body,  as  an 
independent  branch  of  Parliament,  was  in  1.^00,  the  34th  year  of 
Edward  I.  Prior  to  this  time  they  had  met  with  the  nobles  and 
the  clergy  and  had  been  outvoted,  but  they  thenceforth  assumed 
the  power  to  act  independently  upon  proposed  legislation,  and 
especially  in  the  enactment  of  tax  laws.  This  was  the  beginning 
of  the  growth  of  the  dominant  influence  of  the  House  of  Commons 
in  the  English  Govermuent  of  to-day. 


192 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  IV. 
Congress. 


Separate  powers 
of  each  House. 


Qualifications  of 
members. 


certain  powers  of  its  own  wliieh  it  exercises 
independently  of  the  other,  and  it  is  to  these 
that  I  propose  to  call  your  attention. 

Article  I,  section  5,  declares  that :  — 

"Each  House  shall  be  the  judge  of  the  elec- 
tions, returns,  and  qualifications  of  its  own 
members,  and  a  majority  of  each  shall  consti- 
tute a  quorum  to  do  business ;  but  a  smaller 
number  may  adjourn  from  day  to  day,  and  may 
be  authorized  to  compel  the  attendance  of  absent 
members,  in  such  manner,  and  under  such  pen- 
alties, as  each  House  may  provide. 

"  Each  House  may  determine  the  rules  of  its 
proceedings,  punish  its  members  fot  disorderly 
behavior,  and,  with  the  concurrence  of  two-thirds, 
expel  a  member. 

"  Each  House  shall  keep  a  journal  of  its  pro- 
ceedings, and,  from  time  to  time,  publish  the 
same,  excepting  such  parts  as  may,  in  their 
judgment,  require  secrecy ;  and  the  yeas  and 
nays  of  the  members  of  either  House,  on  any 
question,  shall,  at  the  desire  of  one-fifth  of  those 
present,  be  entered  on  the  journal. 

"Neither  House  during::  the  session  of  Con- 
gress,  shall,  without  the  consent  of  the  other, 
adjourn  for  more  than  three  days,  nor  to  any 
other  place  than  that  in  which  the  two  Houses 
shall  be  sittins;." 

It  will  be  observed  that  while  these  provisions 
give  to  each  House  the  same  powers,  and  impose 
upon  each  the  same  limitations,  they  are  to  be. 
exercised  separately  and  independently.  "  Each 
House  shall  be  the  judge  of  the  elections,  returns, 


SEPARATE    POWERS    OF    EACH    HOUSE.  I'Jo 

and  qualifications  of  its  own  members."     This  lkcture  iv. 
provision   necessarily  refers   all   contested   elec- ^-^"'''i'^'''''""'*  ** 

^  ^  members. 

tions,  and  all  questions  about  the  eligibility  of 
members  of  Congress,  to  the  House  to  which 
they  belong ;  but  it  seems  from  the  experience  of 
the  past  to  have  been  one  of  those  principles 
adopted  from  the  English  House  of  Commons 
which  has  not  worked  well  with  our  institutions, 
and  which  the  House  of  Commons  itself  has  been 
compelled  to  abandon.  Contested  elections  are 
now  by  the  law  of  England  tried  before  the  judi- 
ciary, and  the  judgment  of  the  court  is  conclusive 
upon  the  subject.  It  is  conceded  on  all  hands 
that  justice  is  in  this  way  more  nearly  adminis- 
tered with  accuracy,  than  it  was  under  the  former 
system.  Both  in  that  country  and  this  under 
the  former  method  the  result  of  a  contested 
election  has  been  very  generally  forecast  by  a 
knowledge  of  the  relations  of  the  parties  con- 
testing to  the  political  majority  or  minority  of 
the  House  in  which  the  contest  is  carried  on.  As 
this  is  a  constitutional  provision,  however,  there 
exists  no  power  in  the  legislature,  without  an 
amendment  of  that  instrument,  to  refer  these 
contested  cases  to  the  judiciary.  The  increasing 
number  of  contested  election  cases  arising  out  of 
frauds  supposed  to  be  perpetrated  at  the  elec- 
tions themselves,  the  investigation  of  which  is 
always  difficult,  and  the  uncertainty  of  a  fair 
and  impartial  decision  by  the  Senate  or  House 
before  whom  the  matter  may  come,  render  it 
very  doubtful  whether  the  enture  provision  on 
this  subject  is  of  any  value. 


194  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkcture  IV.  Very  few  controversies,  if  any,  have  arisen  in 

Qualifications  of       ^,^^^  •  ii  Tn       ••  e    •. 

members.  either  body  concerning  the  qiuiiincations  or  its 

members.  It  was  at  one  time  a  question  some- 
what mooted  whether  the  States  could  add  to 
the  quaUfications  which  the  Constitution  has 
prescribed  for  members  of  the  Senate  or  the 
House  of  Representatives ;  but  it  is  now  conceded 
that  these  must  be  determined  by  tlie  Constitu- 
tion alone,  because,  although  it  may  be  conceiv- 
able that  Congress  might  make  some  conditions 
or  limitations  concerning  the  eligibility  of  its 
members,  it  has  not  been  done,  and  the  constitu- 
tional qualifications  alone  regulate  that  subject. 

Power  to  compel       The  powcr  to  coiiipel   the  attendance  of  ab- 

attendance.  ^^^^^  members  is  one  which  unfortunately  it  is 
often  necessary  to  call  into  operation.  In  the 
House  of  Representatives  the  "  call  of  the 
House,"  which  is  the  phrase  for  the  method 
used  in  compelling  each  member  to  be  present, 
is  one  which  in  every  session  is  frequently  re- 
sorted to,  and  is  always  tedious  and  almost 
fruitless  in  its  results.  The  stately  Senate 
resorts  to  this  measure  more  rarely,  but  it  has 
been  found  occasionally  necessary,  even  there. 
The  penalties  for  such  absence  have  in  practice 
usually  amounted  to  nothing  ;  the  absentees  are 
generally  brought  in,  under  the  custody  of  the 
sergeant-at-arms,  and  make  an  apology  which 
is  accepted. 

Rules.  The  provision  that  each  House  may  determine 

the  rules  of  its  proceedings  has  led  to  the  adop- 
tion of  two  systems,  differing  widely  from  each 
other,  in  each  of  the  bodies.     The  main  basis, 


SEPARATE    POWERS    OF    EACH    HOUSE.  195 

however,  on  which  those  rules  have  been  con-  lkctukk  iv. 
striicted  is  Jefferson's  Manual,  a  work  prepared  ^"'^''" 
by  him  mainly  from  the  historical  precedents 
in  the  English  House  of  Commons.  These  rules 
have  become  by  many  changes  and  amend- 
ments very  numerous.  The  Senate,  being  a 
much  smaller  body  than  the  House,  and  profess- 
ing to  proceed  upon  principles  of  courtesy  which 
allow  every  member  to  speak  upon  any  question 
as  long  as  he  may  desire,  most  of  the  business 
of  that  branch  of  the  Legislature  is  done  under 
a  kind  of  general  consent.  In  the  House  of 
Representatives,  on  the  contrary,  the  greater 
numbers  of  that  body,  and  the  difficidty  of  re- 
straining its  members,  and  making  them  conform 
to  any  set  of  regulations,  have  led  to  a  very  com- 
plex and  troublesome  set  of  rules.  With  a  good 
knowledge  of  them  an  experienced  member,  who 
has  served  in  that  body  during  several  terms  of 
Congress,  may  obtain  a  very  great  advantage  in 
the  conduct  of  the  business  of  the  House.  Many 
of  these  rules,  indeed,  in  the  opinion  of  intelli- 
gent members  and  outside  observers,  are  better 
calculated  to  embarrass  than  to  facilitate  the 
progress  of  business,  and  a  member  familiar 
with  them  and  their  bearing  upon  all  subjects 
of  legislation  which  may  arise  is  often  enabled 
to  get  the  House  into  inextricable  confusion,  and 
retard  or  suspend  its  proceedings  entirel3\  It 
is  obvious,  therefore,  that  these  rules  could  be 
very  much  improved  by  a  careful  revision. 

The  punishment  of   members  for  disorderly  Pnnishmont  for 
behavior  has  generally  been  by  resolutions  ex-  j^^. 


196  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  IV.  pressmg  the  disapprobation  of  the  House  to 
dUorderi^'b/hav-  which  the  member  belonged,  or  by  a  reprimand 
ior.  to  the  disorderly  party  by  the  presiding  officer 

thereof  under  the  direction  of  that  body ;  but 
both  of  these  punishments,  as  well  as  the  expul- 
sion of  a  member  which  requires  two-thirds, 
have  been  of  rare  occurrence  and  have  never 
been  exercised,  it  is  believed,  without  sufficient 
grounds,  although  this  has  been  questioned  in  re- 
gard to  some  cases  of  expulsion  at  the  beginning 
of  the  recent  war  on  account  of  the  supposed 
treasonable  practices  or  utterances  of  certain 
Senators. 
Journals.  Each  Housc  shall  keep  a  journal  of  its  pro- 

ceedings, and,  from  time  to  time,  publish  the 
same,  excepting  such  parts  as  may,  in  their 
judgment,  require  secrecy.  The  journals  of  both 
Houses  of  Congress  have  undoubtedly  been  faith- 
fully kept  since  the  beginning  of  the  Govern- 
ment ;  and  but  rarely  has  any  portion  been 
withheld  from  publication,  except  that  which 
relates  to  the  secret  sessions  of  the  Senate  when 
engaged  in  its  function  of  considering  treaties  or 
nominations  to  office  sent  to  it  by  the  President. 
Very  recently  a  strenuous  effort  has  been  made 
to  abolish  the  secret  sessions  in  which  these 
matters  have  been  considered,  by  a  resolution  of 
the  Senate  itself.  Thus  far  it  has  failed ;  and  in 
regard  to  treaties  it  is  certainly  wise  that,  while 
they  are  yet  incomplete  and  matters  of  negotia- 
tion between  the  two  nations  proposing  to  make 
them,  the  discussions  of  a  body  like  the  Senate 
should  not  be  bruited  abroad. 


SEPARATE    POWERS    OF    EACH    HOUSE.  1!J7 

The  provision  that  "  the  yeas  and  nays  of  the  lectukk  iv. 
members  of  either  House,  on  any  question,  shall,  <''^''<>f  "'♦'ya* 

•■'     ^  '  and  nays. 

at  the  desire  of  one-lifth  of  those  present,  be 
entered  on  the  journal,"  whether  wise  or  unwise, 
is  the  fruitful  source  of  a  great  waste  of  time. 
It  may  be  very  well  doubted  whether  the  call  of 
the  yeas  and  nays  in  the  House  of  Representci- 
tives,  which  necessarily  consumes  a  great  deal 
of  time,  is  not  resorted  to  more  for  that  purpose 
than  any  other,  thereby  frequently  defeating  a 
measure  which  a  majority  of  the  House  is  pre- 
pared to  pass.  It  may  be  of  some  advantage  in 
the  way  of  compelling  members  to  spread  their 
names  upon  the  record  as  having  voted  for  or 
against  any  particular  proposition,  and  thereby 
holding  them  responsible  to  the  public  sentiment 
of  their  constituents.  Where  this  is  the  consci- 
entious object  and  motive  in  calling  for  the  yeas 
and  nays  it  is  probably  unobjectionable,  and  in 
the  enactment  of  laws  of  great  public  impor- 
tance it  is  desirable,  for  many  reasons,  that  the 
votes  of  members  should  be  recorded.  No  doubt 
this  was  the  object  of  the  Constitution  in  author- 
izing a  call  of  the  yeas  and  nays  upon  the  re- 
quest of  one-fifth  of  the  members  present,  and 
this  requirement  of  one-fifth  seems  to  be  a  neces- 
sity to  prevent  the  frittering  away  of  the  time 
of  the  legislative  body  at  the  request  of  a  single 
member. 

The  requirement  that  "  neither  House,  during  Limitation  in 
the  session  of  Congress,  shall,  without  the  con-  ^dlourmnenr''' 
sent  of  the  other,  adjourn  for  more  than  three 
days,  nor  to  any  other  place  than  that  in  which 


198 


LECTUIIES    ON    CONSTITUTIONAL    LAW. 


Separate  powers 
of  the  House. 


lectuke  IV.  the  two  Houses  shall  be  sitting,"  is  of  obvious 
powerof'soILate  necessity  to  prevent  either  branch  of  the  Con- 
adjouniment.  gress  from  breaking  up  its  sessions.  If  one 
House  could  adjourn  itself  to  a  different  place  it 
would  practically  be  an  end  to  that  session  of 
Congress  ;  or  if  one  House  could  adjourn  of  its 
own  motion  without  the  other,  for  two  or  three 
weeks  at  a  time,  the  obstruction  of  the  public 
business  would  be  very  great,  and  there  would 
be  an  impossibility  of  the  co-operative  action 
contemplated  by  the  Constitution.  In  practice, 
the  three  days'  limit  is  reached  by  one  or  both 
branches  of  Congress  very  frequently  during  a 
long  session,  when  an  adjournment  is  had  over 
from  Thursday  until  Monday. 

These  are  the  provisions  which  apply  equally 
to  each  House  of  Congress,  and  are  obligatory 
upon  both.  We  now  come  to  consider  certain 
powers  and  functions  which  are  reposed  in  one 
House  and  not  in  the  other.  Of  these  we  will 
begin  with  the  House  of  Representatives. 

Article  I,  section  2,  declares  that  "  the  House 
of  Representatives  shall  choose  their  Speaker  and 
other  officers,  and  shall  have  the  sole  power  of 
impeachment."  In  the  use  of  the  word  which  des- 
ignates the  presiding  officer  of  that  body  the  con- 
vention which  framed  the  Constitution  adopted, 
as  it  has  done  in  so  many  other  instances, 
the  language  of  the  law  of  England  in  regard 
to  the  presiding  officer  of  the  House  of  Commons. 
While  there  is  in  the  Constitution  no  very  defi- 
nite description  of  the  powers  which  may  be 
exercised  by  the    Speaker   of   the    House,  that 


The  Speaker. 


SEPARATE    POWERS    OF    EACH    HOUSE.  I'M) 

office  lias  become,  by  the  practice  and  the  rules  lectukk  iv. 
of  the  House,  the  repository  of  more  unrestricted  ^'^^  ^p^aker. 
power  than  any  other  officer  of  the  Government 
of  the  United  States  possesses.  The  Speaker  ap- 
points all  the  committees  of  that  body,  whether 
those  prescribed  by  the  general  rules  of  the 
House  or  special  committees  for  particular  occa- 
sions. He  not  only  appoints  these  committees, 
but  he  nominates  their  chairmen ;  although  he 
does  this,  of  course,  with  reference  to  the  opin- 
ions of  the  members  of  the  committee,  so  far  as 
they  may  be  known,  in  regard  to  matters  which 
will  come  before  them.  It  is  also  customary  to 
make  up  these  committees,  with  regard  to  the 
political  affiliations  of  the  members  who  are  to 
compose  them,  in  such  a  manner  as  to  give  a 
majority  upon  each  committee  to  the  party  to 
which  the  Speaker  himself  belongs ;  and  in  re- 
gard to  particular  measures  which  may  be 
brought  to  the  attention  of  the  House,  the 
Speaker,  if  he  is  aware  of  their  character,  may 
so  arrange  the  committee,  to  which  they  will  be 
referred,  as  to  secure  action  in  accordance  with 
his  own  views  of  the  subject  under  consideration. 
As  the  influence  of  the  reports  and  action  of 
these  committees  has  grown  greater  and  greater 
with  the  increasing  number  of  the  members  of 
the  House  of  Representatives,  the  power  of  the 
Speaker  in  thus  securing  in  advance  a  committee 
which  will  act  according  to  his  views  is  hard  to 
over-estimate.  In  the  pressure  of  business  in  the 
House,  which  is  alw^ays  very  great,  the  recogni- 
tion of  a  member  by  the  Speaker,  or  his  failure 


200  LECTURES    ON    CONSTITUTIONAL    LAW. 

lectukk  IV.  to  SO  recognize  liim  when  he  rises  upon  the  floor, 
The  Speaker.  Qf^en  determines  the  fate  of  an  important  meas- 
ure ;  and  this  recognition,  which  formerly  was 
supposed  to  be  impartial  and  the  actual  result  of 
the  Speaker's  eye  first  falling  upon  the  member 
whom  he  recognized,  has  come  to  be  in  modern 
times  a  matter  of  prearrangement  and  under- 
standing between  the  Speaker  and  the  members 
who  desire  to  be  heard.  All  this  makes  him  al- 
most the  absolute  arbiter  of  the  important  leg- 
islation which  is  crowded  into  the  latter  part  of 
a  session  of  Congress. 

The  House  of  Representatives,  by  the  char- 
acter of  its  organization  under  the  Constitution 
of  the  United  States,  consists  of  the  same  body 
of  men  for  two  years,  and  a  term  of  Congress 
has  come  to  be  treated  as  the  same  as  that  of 
the  members,  whose  term  of  office  commences  on 
the  fourth  of  March  and  continues  for  two  years 
thereafter.  It  is  this  body  which  elects  a 
Speaker,  and  he  is  elected  for  the  term  of  that 
Congress.  There  is,  therefore,  a  new  Speaker 
elected  at  the  beginning  of  every  Congress.  It 
is  creditable  to  the  characters  of  the  Speakers 
who  have  presided  over  that  body,  and  to  the 
discretion  of  the  respective  Houses  that  elected 
them,  that  it  is  rare  that  a  Speaker  has  only 
served  a  single  term.  They  have  generally  been 
re-elected  for  several  terms,  as  long  as  they  them- 
selves remained  in  Congress  and  their  party  in 
the  majority,  or  chose  to  seek  a  re-election. 
Undoubtedly  this  grows  largely  out  of  the  fact 
that  the  necessity  and  value  of  experience  in  a 


SEPARATE    POWERS    OF    EACH    HOUSE.  201 

Speaker  is  felt  by  all  the  members ;  and  perhaps  LECTtrnE  iv. 
it  may  be  said  also  that,  subject  to  certain  rec-  ^'^^  ^p^^^^'- 
ognized  obligations  to  the  political  party  who 
elected    him,  the    Speaker   has    generally   been 
found  to  be  impartial  toward  the  members,  and 
just  in  his  rulings  on  matters  submitted  to  him. 

The  other  officers  of  the  House  of  Represent-  other  officers  of 
atives,  beside  the  Speaker,  are  the  clerk,  the*^®"*'"^' 
sergeant-at-arms,  doorkeeper,  postmaster,  and 
perhaps  others  of  inferior  grade.  These  require 
no  connnent  at  the  present  time,  except  to  say 
that  they  are  almost  invariably  selected  at  a 
caucus  of  the  dominant  party  held  a  day  or 
two  before  the  organization  of  the  House.  It 
has  happened  once  or  twice  in  the  history  of 
the  Government,  the  contest  for  the  office  of 
Speaker  being  so  close  and  so  bitter,  that,  no 
candidate  receiving  a  majority  of  the  whole 
number  of  votes,  the  struggle  was  prolonged  for 
several  weeks  at  the  beginning  of  the  session, 
durino;  which  the  House  could  do  nothinsr. 

The  House  also    has  the    sole  power  of  im-  Power  of  im- 
peachment.^     The    Constitution    provides    else- ^^**^^'"^°** 

^  "  It  is  not  disputed  that  the  power  of  originating  the  inquiry, 
or,  in  otlier  words,  of  preferring  the  impeachment,  ought  to  be 
lodged  in  tlie  hands  of  one  branch  of  the  legislative  body  ;  will  not 
the  reasons  which  indicate  the  propriety  of  this  arrangement 
strongly  plead  for  an  admission  of  the  other  branch  of  that  body  to 
a  share  of  the  inquiry  ?  The  model  from  which  the  idea  of  this 
institution  has  been  borrowed,  pointed  out  that  course  to  the  con- 
vention. In  Great  Britain  it  is  the  province  of  the  House  of  Com- 
mons to  prefer  the  impeachment,  and  the  House  of  Lords  to  decide 
upon  it.  Several  of  the  State  constitutions  have  followed  the 
example.  As  well  the  latter,  as  the  former,  seem  to  have  regarded 
the  practice  of  impeachments  as  a  bridle  in  the  hands  of  the  legis- 
lative body  upon  the  executive  servants  of  the  Government.  Is  not 
this  the  true  light  in  which  it  ought  to  be  regarded  ?  "  The  Feder- 
alist, No.  64.     Dawson's  ed. :  No.  65,  Hallowell  ed. 


202  LECTURES    ON    CONSTITUTIONAL    LAW. 

lect<:re  IV.  where,  to  which  we  have  already  referred  in 
pra^cbureut'""  these  lectures,  that  the  President,  and  all  the 
other  officers  of  the  Government,  may  be  re- 
moved from  office  by  impeachment  for  high 
crimes  and  misdemeanors.  The  process  of  im- 
peachment, which  is  here  provided  for,  can  only 
begin  in  the  House  of  Representatives.  This  is 
done  by  that  House  fornmlating  charges  in  the 
nature  of  an  indictment  against  the  officer 
intended  to  be  impeached,  upon  inquiry  into  the 
matters  which  they  propose  to  include  within 
such  impeachment.  No  other  body  has  the 
right  to  prefer  these  articles  or  charges.  In 
doing  this  the  House  of  Representatives  dis- 
charges a  function  in  the  nature  of  that  exer- 
cised by  a  grand  jury.  Nor  does  its  connection 
with  the  proceedings  cease  with  the  mere  formu- 
lation of  the  charges  and  the  presentation  of 
them  to  the  Senate,  which  is  the  body  that  tries 
the  impeachment.  The  prosecution  of  the  case 
before  the  Senate  by  the  introduction  of  evi- 
dence, the  argument  of  the  cause,  and  all  the 
other  machinery  for  the  conviction  of  the  de- 
fendant, is  submitted  to  the  control  of  the  House. 
That  body  usually  appoints  a  special  committee, 
called  a  committee  of  managers,  who  conduct 
the  prosecution.  They  may  be,  and  in  impor- 
tant cases  are,  aided  by  counsel  who  are  not 
members  of  the  committee,  nor  even  members 
of  the  House  ;  but  this  matter  is  within  the  con- 
trol of  the  House,  and  such  counsel  are  employed 
by  its  authority. 

The  most  important  trial  of  this  class  which 


SEPARATE    POWERS    OF    EACU    HOUSE.  203 

has  ever  taken  place  in  this  country  was  that  of  lecture  iv. 
President  Johnson,  which  has  ah^eady  been  ^e- ^"""y  "^ ""' 
ferred  to.  This  power  of  impeachment  has  not 
been  exercised  very  frequently,  probably  not 
nearly  so  often  as  it  would  have  been  but  for 
the  limited  tenure  of  most  of  the  officers  of  the 
Federal  Government.  The  process  is  tedious 
and  expensive,  and  the  requirement  of  a  two- 
thirds  uiajority  in  order  to  convict,  renders  it 
generally  mefficient.  As  most  of  the  officers  of 
the  Government  have  a  term  fixed  to  the  enjoy- 
ment of  their  offices,  it  has  been  usually  thought 
wiser  to  let  the  limitation  effect  the  removal, 
than  to  engage  in  this  costly  and  unsatisfactory 
process  of  impeachment. 

"  All  bills  for  raising  revenue  shall  originate  Revenue  biiia. 
in  the  House  of  Representatives ;  ^  but  the  Senate 
may  propose  or  concur  with  amendments,  as  on 
other  bills."  ^ 

This  is  a  very  important  function  of  legisla- 
tion, as  it  is  now  construed  by  the  House,  to  be 
reposed  exclusively  m  that  body.     As  we  would 

1  The  House  of  Representatives  can  not  only  refuse,  but  they 
alone  can  propose  the  supplies  requisite  for  the  support  of  Govern- 
ment. They,  in  a  word,  hold  the  purse  ;  that  powerful  instrument 
by  which  we  behold,  in  the  history  of  the  British  constitution,  an 
infant  and  humble  representation  of  the  people  gradually  enlarging 
the  sphere  of  its  activity  and  importance,  and  finally  reducing,  as 
far  as  it  seems  to  have  wished,  all  the  overgrown  prerogatives  of 
the  other  branches  of  the  government.  This  power  over  the  purse 
may,  in  fact,  be  regarded  as  the  most  complete  and  effectual 
weapon,  with  which  any  constitution  can  arm  the  immediate  rep- 
resentatives of  the  people  for  obtaining  a  redress  of  every  griev- 
ance, and  for  carrying  into  effect  every  just  and  salutary  measure. 
The  Federalist,  No.  57,  Dawson's  ed. :  No.  58,  all  other  editions. 

2  Constitution,  Art.  1,  sec.  7,  par.  1. 


204  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  IV.  naturally  Understand  the  meaning  of  the  term 
Revenue  bills.  ''revenue"  at  the  present  day,  the  expression 
"  bills  for  raising  revenue  "  would  have  reference 
to  laws  for  the  purpose  of  obtaining  money  by 
some  form  of  taxation  or  other  means  of  raising 
the  necessary  funds  to  be  used  in  supplying  the 
wants  of  the  government,  paying  its  expenses, 
and  discharging  its  debts.  The  appropriation 
of  that  money,  which  is  always  necessarily  done 
by  virtue  of  an  act  of  Congress,  would  seem  to 
be  quite  a  different  thing  from  the  laws  prescrib- 
ing how  the  money  shall  be  raised.  In  practice, 
however,  the  House  of  Representatives  has  in- 
sisted that,  not  only  shall  it  originate  all  bills  of 
ways  and  means  for  raising  revenue,  for  which 
purpose  there  is  a  committee  appointed  in  that 
body  called  the  "  Committee  on  Ways  and 
Means,"  but  it  has  also  claimed  that  all  the 
appropriation  bills,  and  especially  the  annual 
appropriation  bills,  which  are  prepared  each  year 
to  meet  the  current  expenses  of  the  Government 
during  the  succeeding  fiscal  year,  shall  originate 
in  that  body ;  and  it  has,  therefore,  a  stand- 
ing "  Committee  on  Appropriations."  This  has 
been  the  practice  now  for  so  long  a  time  that  it 
may  be  doubted  whether  it  will  be  seriously 
questioned. 

The  Senate,  however,  has  never  given  its  full 
assent  to  this  proposition,  but  has,  on  the  con- 
trary, from  time  to  time  originated  bills  appro- 
priating money  for  specific  purposes ;  although  it 
is  not  believed  that  it  has  for  a  great  many 
years  attempted  to  act  upon  any  of  the  general 


SEPARATE    POWERS    OF    EACH    HOUSE.  205 

appropriation  bills  until  they  have  been  sent  to  lecture  iv. 
that  body  from  the  House.  At  the  present  time  ^'^'""'  *''^*^- 
there  is  no  apparent  connection  between  a  bill  for 
raising  money  and  an  appropriation  bill  to  spend 
that  money.  The  revenues  of  the  country  are 
derived  from  a  system  of  permanent  taxation, 
which  year  after  year  brings  into  the  treasury 
of  the  United  States,  by  its  continued  operation, 
sufficient  means  to  pay  all  the  expenses  of  the 
Government,  as  well  as  the  interest  on  its  public 
debt ;  and  it  is  not  necessary  that  every  year,  or 
even  at  every  term  of  the  Congress,  there  should 
be  a  new  law  for  the  raising  of  revenue,  but  it 
is  required  that  there  should  be  a  law  every 
year  appropriating  the  money  thus  placed  in  the 
treasury  to  the  needs  of  the  Government.  It  is 
difficult  to  see,  under  this  clause  of  the  Consti- 
tution, how  it  is,  when  no  new  law  is  necessary 
to  raise  revenue,  that  the  act  appropriating  or 
directing  how  the  revenue  already  raised,  which 
exists  or  is  expected  to  exist  in  the  treasury, 
shall  be  appropriated,  can  be  properly  called  a 
bill  for  raising  revenue.  Undoubtedly  the  adop-  Difference  be- 
tion  of  this  article  into  the  Constitution,  and  the  *^f "  ^"^•''^^ 

'  and  Ameneau 

construction  which  has  been  given  to  it,  is  the  practice  in  this 
result  of  the  practices  of  our  English  ancestors.  ^^ 
The  Commons  of  England  came  into  existence 
as  an  efficient  power  in  the  government  of  that 
country  by  virtue  of  the  necessity  there  was  for 
them  to  make  contributions,  called  subsidies, 
and  taxes,  which  they  gave  to  the  King  for  his 
support  and  for  that  of  his  government.  This 
at  first  was  done  at  odd  times,  and  but  infre- 


206 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  IV. 
Difference  be- 
tween English 
and  American 
practice  in  this 
matter. 


quently,  the  King  relying  in  early  days  upon 
his  own  revenues  to  support  his  regal  station 
and  his  authority.  But  as  these  became  inade- 
quate, and  wars  with  foreign  nations  demanded 
more  money  and  treasure  or  property  than  the 
King  could  command,  he  was  by  necessity  com- 
pelled to  call  upon  his  subjects  to  aid  him  by 
contributions  from  their  substance.  This  he 
did  by  calling  together  certain  prominent  and 
leading  men  in  the  country  who  represented 
their  own  classes  and  the  citizens  of  the  towns, 
who  voted  a  voluntary  supply,  or  contribution, 
or  subsidy  (for  it  was  called  by  all  of  these 
names),  which  they  appropriated  to  the  support 
of  the  King  and  his  government.  These  votes 
and  gifts  of  the  Commons  they  were  very  jeal- 
ous about.  They  would  not  permit  the  King 
himself  to  levy  these  taxes  or  contributions 
without  their  consent  given  in  public  in  solemn 
form ;  and  it  may  be  remarked  that  the  revolu- 
tion in  which  King  Charles  lost  his  life  was  the 
result  of  an  attempt  on  his  part  to  do  this. 
Neither  would  they  permit  the  House  of  Lords 
to  vote  these  taxes  or  supplies.  Hence,  as  the 
necessity  for  resorting  to  the  Commons  for  the 
support  of  the  government  grew  greater  and 
greater,  the  tenacity  with  which  they  clung  to 
the  right  to  have  this  done  by  their  own  volun- 
tary action  became  stronger  and  stronger.^ 


( 


1  The  Commons,  through  its  nominees,  tlie  ministry,  has  ab- 
sorbed the  greater  part  of  the  power  of  the  Crown,  and  more  and 
more  reduced  the  other  House  to  a  position  of  secondary  impor- 
tance. 


SEPARATE    TOWERS    OF    EACH    HOUSE.  207 

These  contributions  were  at  first  voted  at  LKrTURK  iv. 
considerable  intervals,  and  the  bill  or  law  by  [|v,.^,7K',LLsh 
which  they  were  given  was  both  a  bill  to  raise  and  American 

,     ,  '1,1,  1  practice  in  this 

revenue  and  to  appropriate  that  revenue  when  matter, 
raised.  They,  therefore,  came  to  be  called  ap- 
propriations, or  bills  of  supply,  and  perhaps 
revenue  bills.  They  have  retained  that  name 
to  the  present  time  in  England,  as  well  as  in 
most  of  the  States  of  the  Federal  Union.  ^  The 
annual  appropriation  bills  in  Great  Britain,  and 
in  this  country  in  most  of  the  States,  are  called 
"bills  of  supply."  In  England  a  familiar  term 
also  is  "  The  Budget,"  and  this  budget,  while 
voting  the  money  necessary  for  the  support  of 
the  Government,  almost  always  contains  some 
modification  of  the  system  of  taxation ;  they  are 
united  together,  and  they  are  in  fact  bills  which 
appropriate  the  money,  and  establish  the  sources 
at  the  same  time  from  which  it  shall  be  raised. 
It  is  undoubtedly  in  analogy  to  that  system,  as 
furnishing  the  true  meaning  of  this  clause  of 
the  Constitution,  that  the  phrase  "  bills  for  rais- 
ing revenue"  in  that  instrument  has  come  to  be 
construed  to  include  both  bills  of  appropriation 
and  bills  for  establishing  or  raising  revenue; 
although  they  may  be  very  different  in  character, 
and  the  bill  for  an  appropriation  may  contain 
no  element  incident  to  the  raisinfi;  of  revenue. 

It  is  singular  that  so  little  comment  is  to  be 
found  upon  this  clause  of  the  Constitution  by 
those  who  have  made  that  instrument  the  sub- 
ject of  their  consideration ;  and  there  is  but  little 
reference  to  it  in  the  debates  of  the  two  Houses 


208  LECTURES    ON    CONSTITUTIONAL    LAW. 

lk(ti;re  IV.  of  Congress  or  in  the  discussions  at  the  time  the 
iweerKn'Misii  Constitution  was  framed  and  adopted.  It  seems  to 
and  AmeriLiiu  havc  been  assumed,  and  probably  a  hundred  years 
matter  ^^go  it  was  the  usual  custom,  that  appropriation 

bills  were  accompanied  by  more  or  less  legisla- 
tion on  the  subject  of  the  means  of  raising  reve- 
nue. But  at  the  present  time,  under  our  settled 
system  of  financial  operation,  although  there  is, 
of  course,  a  necessity  for  regulating  the  expen- 
ditures of  the  Government  and  therefore  prepar- 
ing the  appropriation  bills  to  meet  its  expenses 
according  to  the  means  which  are  at  the  com- 
mand of  Congress,  there  is,  in  fact,  a  very  re- 
mote connection  between  a  bill  for  the  raising 
of  revenue  and  the  ordinary  bills  appropriating 
the  revenue  already  raised  to  the  support  of  the 
Government. 
Election  of  Presi-  In  some  respects  the  most  important  duty, 
is^noliection^bj  ^cvolvcd  npon  the  Housc  of  Representatives 
the  people.  exclusively  by  the  Constitution,  is  that  which 

was  originally  found  in  Article  II,  section  1, 
paragraph  3,  of  that  instrument,  but  for  which 
the  Twelfth  Article  of  the  amendments  has  since 
been  substituted.  This  Article,  after  amending 
in  some  respects  the  clumsy  provision  as  it 
originally  stood  concerning  the  appointment  of 
electors,  and  their  choice  of  a  President,  declares 
that  "  the  person  having  the  greatest  number  of 
votes  for  President  shall  be  the  President,  if  such 
number  be  a  majority  of  the  whole  number  of 
electors  appointed,  and  if  no  person  have  such 
majority,  then,  from  the  persons  having  the 
highest  numbers,  not  exceeding  three,  on  the  list 


SEPARATE    POWERS    OF    EACH    HOUSE,  209 

of  those  voted  for  as  President,  the  House  of  lecture  iv. 
Representatives    shall    choose    immediately,    bv  ^^'-'^"","  "^  I''*''*'' 

A  _  ^  'J  '        ^   dent  wlieii  tliere 

ballot,  the  President.  But  in  choosing  the  is  no  election  by 
President,  the  votes  shall  be  taken  by  States,  *''^  i*^°p>*-"- 
the  representation  from  each  State  having  one 
vote  ;  a  quorum  for  this  purpose  shall  consist  of 
a  member  or  members  from  two-thirds  of  the 
States,  and  a  majority  of  all  the  States  shall  be 
necessary  to  a  choice.  And  if  the  House  of  Rep- 
resentatives shall  not  choose  a  President,  when- 
ever the  right  of  choice  shall  devolve  upon  them, 
before  the  fourth  day  of  March  next  following, 
then  the  Vice-President  shall  act  as  President,  as 
in  case  of  the  death,  or  other  constitutional  dis- 
ability of  the  President." 

As  this  provision  stood  in  the  original  Consti- 
tution, each  elector  cast  two  votes,  and  the  per- 
son receiving  the  largest  number  of  such  votes 
was  to  be  President,  and  the  one  the  next  largest 
was  to  be  Vice-President.  This  made  no  pro- 
vision for  distinctive  votes  for  President  and 
for  Vice-President,  the  result  of  which  was  that 
at  the  end  of  President  John  Adams'  administra- 
tion, when  the  electors  came  to  cast  their  votes, 
it  was  found  that  Mr.  Jefferson  and  Mr.  Burr  had 
an  equal  number  of  votes,  though  it  has  been 
said  that  in  the  popular  canvass  which  resulted 
in  the  election  of  these  electors,  it  had  always 
been  understood  that  Mr.  Jefferson  was  supported 
for  President  by  those  who  voted  for  Mr.  Burr 
as  Vice-President.  The  result,  hoAvever,  of  this 
tie  was  that  the  election  w^ent  to  the  House  of 
Representatives  under  the  provision  in  the  orig- 


210 


LECTURES    ON    CONSTITUTIONAL    LAW. 


lecturk  IV.       inal  Constitution,  and  not  under  the  ones  which 
f'""''7°^f'"''- we  have  iust  cited  from  the  Twelfth  Article  of 

dent  when  there  -> 

is  no  election  by   the  amendments,  and  a  long  and  bitter  contest 
tiepeope.  eusucd  in  that  body  before    Mr.   Jefferson  was 

finally  elected  President,   and    Mr.   Burr   Vice- 
President. 

A  similar  event  under  this  Twelfth  Article 
occurred  at  the  expiration  of  Mr.  Monroe's  ad- 
ministration, when  neither  of  the  candidates  who 
were  voted  for  by  the  electors  received  a  major- 
ity of  the  electoral  votes.  .  General  Jackson 
received  a  plurality  ;  Mr.  John  Quincy  Adams 
received  the  next  highest  number,  and  then 
came  Mr.  Crawford  and  Mr.  Clay.  The  election 
by  the  House,  taken  by  States,  resulted  in  the 
choice  of  Mr.  Adams. 

Although  this  mode  of  electing  a  President, 
by  which,  as  in  the  case  last  cited,  the  plurality 
of  the  electoral  vote  and  a  very  large  plurality 
of  the  popular  vote  was  for  one  man,  while 
another  was  elected  President  by  the  House  of 
Representatives,  has  never  met  with  general 
public  approval,  yet  it  remains  unaltered  in  the 
objectionable  feature  mentioned,  and  but  little 
effort  has  ever  been  made  to  change  it.  In  fact 
the  whole  subject  of  the  manner  of  electing  a 
President  has  never  been  satisfactory  to  the 
general  public,  and  only  the  difficulty  of  propos- 
ing a  system  which  would  meet  with  the  gen- 
eral approval  of  the  States,  to  which  it  would 
have  to  be  submitted,  has  prevented  some  mate- 
rial modification  of  it.  The  manner  of  counting 
the  votes  is  left  ambiguous  in   many  respects, 


SEPARATE    POWERS    OF    EACH    HOUSE.  211 

and   in  the   case   of   the    contest   between    Mr.  lecture  iv. 
Hayes  and  Mr.  Tilden  was  a  subject  of   m^eciif'f "''''' ^''''- 

<J  JO  dent  when  tliere 

anxiety  and  even  danger  from  a  public  disturb-  is  no  election  hy 
ance  of  the  peace,  which  was  only  averted  by*®P^°P®' 
the  novel  expedient  of  an  electoral  commission 
to  report  upon   the  condition  of   the  electoral 
votes  cast. 

Reverting  now  to  the  exclusive  powers  vested  separate  powers 
in  the  Senate,  that  which  relates  to  the  selecting  ""^  ^^^  ^®°**®' 
of  its  officers,  as  found  in  Article  I,  section  3, 
will  be  seen  to  differ  somewhat  from  that  of  the 
House  of  Representatives.     Paragraphs  4,  5  and 
6  read  as  follows  :  — 

"  4.  The  Vice-President  of  the  United  States 
shall  be  President  of  the  Senate,  but  shall  have 
no  vote,  unless  they  be  equally  divided. 

"  5.  The  Senate  shall  choose  their  other  offi- 
cers, and  also  a  President  pro  tempore,  in  the 
absence  of  the  Vice-President,  or  when  he  shall 
exercise  the  office  of  President  of  the  United 
States. 

"  6.  The  Senate  shall  have  the  sole  power  to 
try  all  impeachments.  When  sitting  for  that 
purpose,  they  shall  be  on  oath  or  affirmation. 
When  the  President  of  the  United  States  is 
tried,  the  Chief  Justice  shall  preside ;  and  no 
person  shall  be  convicted  without  the  concur- 
rence of  two-thirds  of  the  members  present." 

It  will  thus  be  seen  that  the  presiding  officer  The  vice-Presi- 
of  the  Senate  is  the  Vice-President  of  the  United  *^®°*- 
States,  not  selected  from  among  the   senators, 
nor  by  them,  and  that  his  principal  function  in 
the -scheme  of  the  Government  is  this  duty  of 


212  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  IV.  presiding  over  the  Senate.  The  office  as  thus 
dent'^'*^^"^'^^^^"  established  was  probably  supposed  to  be  one  of 
much  dignity  and  of  some  power,  especially  in 
regard  to  the  appointment  of  committees,  stand- 
ing or  others.  The  practice  of  the  Senate,  how- 
ever, for  many  years  past  has  been,  under  the 
domination  of  all  political  parties  in  it,  to  select 
by  a  majority  vote  of  the  entire  body  its  com- 
mittees and  their  chairmen.  This  is  altogether 
true  of  the  regular  standing  committees.  If  the 
presiding  officer  of  the  Senate  is  ever  authorized 
to  appoint  the  members  of  a  special  committee, 
it  is  by  virtue  of  the  express  delegation  of  that 
power  in  the  resolution  providing  for  such  com- 
mittee. 

The  limited  power  of  the  Vice-President  to 
cast  a  vote  in  the  case  of  an  equal  division  of 
the  Senate  has  been  rarely  called  into  exercise, 
and  the  office  itself,  except  for  the  event  unfor- 
tunately too  often  occurring  in  the  history  of 
our  Government  of  his  succession  to  the  Presi- 
dential office  by  the  death  of  its  incumbent, 
would  be  one  merely  of  dignity  and  respectabil- 
ity. In  the  case  of  the  death  of  the  Vice-Presi- 
dent, or  his  accession  to  the  office  of  President 
of  the  United  States,  or  his  temporary  absence, 
the  Senate  elects  a  president  ijro  tempore,  from 
among  its  own  members,  who  exercises  all  the 
functions  of  the  Vice-President  in  relation  to 
that  body,  except  that  of  giving  a  casting  vote 
in  case  of  an  equal  division.  This  he  does  not 
do  because  he  does  not  lose  his  right  to  vote  as 
a  senator  by  becoming  the  presiding  officer  of 
that  body. 


SEPARATE    POWERS    OF    EACH    HOUSE.  213 

One  of  the  most  important  powers  confided  lecture  iv. 
to  the  Senate  is  that  of  tryiner  impeachments. '^''■'^'°^*'"'"''"^ 

y       ^  ^  uients. 

As  ah'eady  suggested,  this  power  has  been 
rarely  called  into  operation  when  we  consider 
that  it  is  the  only  mode  of  removing  from  his 
place  an  officer  of  the  Government  during  the 
term  of  office  for  which  he  is  elected  or  ap- 
pointed, except  so  far  as  that  power  may  be 
reposed  in  the  President  as  a  part  of  his  power 
of  appointment  to  office.  In  other  cases,  which 
are  by  far  the  most  numerous,  wliere  it  would 
be  important  to  remove  an  officer,  it  can  only 
be  done  by  impeachment.  The  result  of  this 
has  been  that  the  expense,  the  delay,  the  cum- 
bersome method  of  the  process  of  impeachment, 
and  the  interference  which  it  causes  with  the 
other  functions  of  the  Senate  while  the  trial 
is  in  progress,  have  all  contributed  to  give 
immunity  to  men  in  high  offices  wdio  ought  to 
have  been  removed  for  the  good  of  the  service 
to  which  they  belonged. 

The  Senate  in  trying  an  impeachment  sits  as 
a  court,  its  members  take  a  new  oath  or  affir- 
mation as  such,  and  when  the  President  of  the 
United  States  is  to  be  tried  the  Chief  Justice  of 
the  Supreme  Court  is  to  be  the  presiding  officer. 
No  conviction  shall  be  had  without  the  concur- 
rence of  two-thirds  of  the  members  present,  and 
in  case  of  a  conviction  the  punishment,  if  it  can 
be  called  punishment,  shall  extend  no  further 
than  to  removal  from  office,  and  disqualification 
to  hold  and  enjoy  any  office  of  honor,  trust,  or 
profit,  under  the  United  States  thereafter. 


214  LECTURES    ON    CONSTITUTIONAL    LAW. 

lectuhe  TV.  TliG  Uncertainty  as  to  what  must  be  tlie  nature 

Trial  of  impeach-  ^£  ^j^^  offences  wliicli  will  iustify  a  conviction  on 
trials  of  impeachment  is  another  reason  why  it 
is  so  seldom  resorted  to.  Article  II,  section  4, 
declares  that  "  The  President,  Vice-President, 
and  all  civil  officers  of  the  United  States,  shall 
be  removed  from  office,  on  impeachment  for,  and 
conviction  of,  treason,  bribery,  or  other  high 
crimes  and  misdemeanors." 

Treason  and  bribery  are  easily  understood,  but 
no  satisfactory  definition  has  ever  been  given 
or  generally  accepted  of  the  phrase  "  or  other 
high  crimes  and  misdemeanors." 

The  most  important  power  of  the  Senate,  how- 
ever, in  which  the  House  of  Representatives  has 
no  part,  is  that  in  which  it  is  called  to  assist  in 
the  performance  of  functions  properly  executive 
in  connection  with  the  President  of  the  United 
States.  These  are  the  making  of  treaties,  and 
the  appointments  to  office.  The  second  paragraph 
of  section  2,  of  Article  II,  of  the  Constitution 
joins  the  Senate  and  the  President  in  the  execu- 
tion of  these  two  powers.  It  declares  that  the 
President  "  shall  have  power,  by  and  with  the 
advice  and  consent  of  the  Senate,  to  make  trea- 
ties, provided  two-thirds  of  the  Senators  present 
concur  ;  and  he  shall  nominate,  and  by  and  with 
the  advice  and  consent  of  the  Senate,  shall  ap- 
point ambassadors,  other  public  ministers,  and 
consuls,  judges  of  the  Supreme  Court,  and  all 
.  other  officers  of  the  United  States,  whose  appoint- 
ments are  not  herein  otherwise  provided  for,  and 
which  shall  be  established  by  law ;  but  the  Con- 


SEPARATE    POWERS    OF    EACH    HOUSE.  ZlrJ 

gress  may  by  law  vest  the  appointment  of  such  lecture  iv. 
inferior  othcers    as    they   think   proper,   in   the  ™  "^ '•"J'^'*^"^- 
President  alone,  in  the  courts  of  law,  or  in  the 
heads  of  departments." 

All  treaties,  therefore,  made  by  this  country  Treaties, 
with  any  foreign  power,  require,  in  the  first 
place,  the  action  of  the  executive  branch  of  the 
Government,  and  then  the  advice  and  consent  of 
the  Senate.  To  make  this  advice  and  consent 
operative,  two-thirds  of  the  senators  present, 
when  a  treaty  is  passed  upon,  must  concur  in  its 
approval.  The  consent  of  the  Senate  also  is 
necessary,  though  not  requiring  two-thirds  of 
that  body  for  that  purpose,  to  the  confirmation 
of  such  officers  as  shall  be  nominated  to  it  by 
the  President  for  ambassadors,  other  public 
ministers  and  consuls,  judges  of  the  Supreme 
Court,  and  all  other  officers  of  the  United  States 
whose  appointments  are  not  otherwise  provided 
for,  and  which  shall  be  established  by  law.  It 
will  be  seen  that  this  provision  confers  upon  the 
Senate  a  power  of  the  greatest  importance  and 
magnitude  in  the  conduct  of  the  affairs  of  the 
Government,  although  it  is  true  that  the  Presi- 
dent in  this  conjoint  action  with  the  Senate  has 
the  initiative.  He  makes  the  treaty  before  it  is 
submitted  to  the  Senate  for  its  consent  thereto, 
and  he  selects  the  individuals  whom  he  will 
nominate  to  office  before  their  names  are  sent  to 
the  Senate  for  its  concurrence.  Although  the 
language  of  the  clause  that  "he  shall  have 
power,  by  and  with  the  advice  and  consent  of 
ther  Senate,  to  make  treaties,"  would  imply  that 


216  LECTURES    ON    CONSTITUTIONAL    LAW. 

lecturk  IV.       the  negotiation  of  a  treaty  with  a  foreign  nation 
reaties.  -^^  ^j^^  j^j^.^^  Instance,  would   be  an  act   in  which 

the  advice  of  the  Senate  would  be  a.sked,  and 
though  the  Senate  has  in  a  few  instances  been 
advised  with,  and  has  made  suggestions  concern- 
mg  treaties  before  they  were  signed  by  the 
officers  of  the  governments  initiating  them,  yet 
the  practice  has  almost  uniformly  been  that  the 
treaty  has  been  first  reduced  to  form  and  signed 
by  the  ministers  authorized  to  negotiate  it,  be- 
fore it  has  been  submitted  to  the  Senate  for  its 
approval. 

The  Senate,  however,  has  exercised  freely  its 
prerogative,  in  cases  where  treaties  have  been 
thus  submitted  to  it,  of  suggesting  amendments 
which  would  put  the  treaty  in  such  form  as  to 
meet  its  views,  or  of  refusing  its  consent  alto- 
gether. The  other  power  of  the  Senate,  to  con- 
firm or  reject  nominations  to  office,  has  also  been 
freely  exercised  and  freely  commented  upon. 
Grave  differences  of  opinion  exist  as  to  the  author- 
ity of  the  President  where  such  nominations  are 
rejected.  The  power  conferred  by  this  clause 
of  the  Constitution  is  too  important,  too  far- 
reaching,  and  presents  too  many  questions  of 
magnitude  and  of  every  day  occurrence  to  justify 
me  in  entering  any  further  into  its  consideration 
than  I  have  done  at  this  time. 


NOTES  UPON    LECTURE  IV. 


1.    Impeachment. 

"  Impeachment  was  taken,  not  directly  from  lecture  iv. 
English  usage,  but  rather  from  the  Constitutions  I'"p«^i^""«°*- 
of  Virginia  (1776),  and  Massachusetts  (1780), 
whicli  had,  no  doubt  following  the  example  of 
England,  established  this  remedy  against  culpa- 
ble officials."  ^  It  is  a  cumbersome  process,  and 
very  apt  to  fail.  A  competent  observer  says 
that  it  "is  the  heaviest  piece  of  artillery  in  the 
congressional  arsenal,  but,  because  it  is  so  heavy, 
it  is  unfit  for  ordinary  use.  It  is  like  a  hun- 
dred-ton gim,  which  needs  complex  machinery 
to  bring  it  into  position,  an  enormous  charge  of 
powder  to  fire  it,  and  a  large  mark  to  aim  at. 
Or,  to  vary  the  simile,  impeachment  is  what 
physicians  call  a  heroic  medicine,  an  extreme 
remedy,  proper  to  be  applied  against  an  official 
guilty  of  political  crimes,  but  ill  adapted  for  the 
punishment  of  small  transgressions."  '^ 

Seven  persons  have  been  impeached.  Of 
these,  five  were  acquitted ;  one  a  President  of 
the  United  States,  one  a  Justice  of  the  Supreme 
Court,  one  a  District  Judge,  one  a  Senator,  and 

1  Note  2,  Bryce's  American  Commonwealth,  vol.  1,  p.  47. 

2  1  Bryce's  American  Commonwealth,  208. 

217 


218 


LECTUUES    ON    CONSTITUTIONAL    LAW. 


Lecture  IV.      oTie  a  Secretary  of  War.     Two  District  Judges 

Impeachmeat.         i  i  •    i      i  i 

have  been  convicted.^ 

2.    The  Budget. 

The  budget.  "  This  name  is  applied  to  an  account  of  the 

ways  and  means  by  which  a  minister  of  finance 
purposes  to  defray  the  expenditure  of  the  State. 
In  the  United  Kingdom  the  Chancellor  of  the  Ex- 
chequer, usually  in  April,  lays  before  the  House 
of  Commons  a  statement  of  the  actual  results 
of  revenue  and  expenditure,  in  the  past  finance 
year  ending  March  31,  showing  how  far  his  esti- 
mates have  been  realized,  and  what  surplus  or 
deficit  there  has  been  in  the  income  as  compared 
with  the  expenditure.  This  is  accompanied  by 
another  statement  in  which  the  Chancellor  gives 
an  estimate  of  what  the  produce  of  the  revenue 
may  be  in  the  year  just  entered  upon,  supposing 
the  taxes  and  duties  to  remain  as  they  were  in 
the  past  year,  and  also  an  estimate  of  what  the 
expenditure  will  be  in  the  current  year.  If  the 
estimated  revenue,  after  allowing  for  normal 
increase  of  the  principal  sources  of  income,  be 
less  than  the  estimated  expenditure,  this  is 
deemed  a  case  for  the  imposition  of  some  new, 
or  the  increase  of  some  existing  tax  or  taxes. 
On  the  other  hand,  if  the  estimated  revenue 
shows  a  large  surplus  over  the  estimated  expen- 
diture, there  is  room  for  remitting  or  reducing 
some  tax  or  taxes,  and  the  extent  of  this  relief 
is  generally  limited  to  the  amount  of  surplus 


1  1  Bryce's  American  Commonwealth,  106,  227 


NOTES    UPON    LECTURE    IV.  219 

realized  in  the  previous  year.  The  Chancellor  lecturk  iv. 
of  the  Exchequer  has  to  take  Parliament  into '^''^ ''"''^^'• 
confidence  on  his  estimates  both  as  regards  reve- 
nue and  expenditure ;  and  when  the  taxation 
and  expenditure  obtain  the  assent  of  Parliament, 
the  results  as  thus  adjusted  become  the  final 
budget  estimate  for  the  year."^ 

3.   The  Speaker. 

The  enormous  power  which  the  Speaker  of  The  Speaker  of 
the  House  of  Representatives  wields  over  the  commons.** 
legislation  of  Congress,  which  Mr.  Justice  Mil- 
ler has  so  forcibly  pointed  out,  is  not  enjoyed 
by  the  presiding  officer  of  that  great  body  in 
England  from  whence  the  office  and  its  title  are 
derived. 

"  In  the  House  of  Commons  the  Speaker  is  a 
member,  elected  to  that  office  at  the  desire  of 
the  Crown,  and  confirmed  by  the  royal  appro- 
bation, given  in  the  House  of  Lords.  A  similar 
ofhce  seems  to  have  existed  as  early  as  the  reign 
of  Henry  III,  when  Peter  de  Montfort  signed 
and  sealed  an  answer  of  the  Parliament  to  Pope 
Alexander,  vice  totius  communitatis ;  but  the 
title  Speaker  was  first  given  to  Sir  T.  Hunger- 
ford,  in  the  reign  of  Edward  III.  The  Speaker 
of  the  House  of  Commons  presides  over  the 
deliberations  of  the  House,  and  enforces  the 
rules  for  preserving  order ;  he  puts  the  question, 
and  declares  the  determination  of  the  House. 
As  the  representative  of  the  House,  he  communi- 

1  Encyclopaedia  Britaimica,  tit.  Budget. 


220 


LECTURES    OX    CONSTITUTIONAL    LAW. 


Lecture  IV. 
The  Speaker  of 
the  House  of 
Commons. 


Treaties. 


cates  its  resolutions  to  others,  and  conveys  its 
thanks  or  its  censures.  lie  is  thus  the  mouth- 
piece of  the  House,  whence  his  title  seems  to  be 
derived.  He  issues  warrants  in  execution  of  the 
orders  of  the  House  for  the  commitment  of 
offenders,  for  the  issue  of  writs,  the  attendance 
of  witnesses,  the  bringing  up  prisoners  in  cus- 
tody, etc.  The  mace  is  borne  before  him  by  the 
sergeant-at-arms  when  he  enters  or  leaves  the 
House;  when  he  is  in  the  chair,  it  is  left  on 
the  table,  and  it  accompanies  him  on  all  State 
occasions.  He  cannot  speak  or  vote  on  any 
question,  but  on  an  equality  of  A^oices  he  has  the 
casting  vote.  Both  by  ancient  custom  and 
legislative  declaration,  he  is  entitled  to  take 
precedence  of  all  commoners."  ^ 

4.    Treaties. 

The  treaties  made  by  the  United  States  with 
foreign  powers  have  had  their  full  share  in 
shaping  the  destiny  of  the  nation  ;  and  hence 
the  power  in  this  respect  reposed  in  the  Senate 
is  one  of  great  importance. 

In  the  notes  to  Lecture  I,  the  treaties  con- 
cluded before  the  adoption  of  the  Constitution 
were  considered.  It  was  also  seen  that  the 
municipal  operation  of  every  treaty  is  subject  to 
be  modified  or  abrogated  by  legislation  of  Con- 
gress. It  only  remains  to  notice  some  of  the 
principal  treaties,  concluded  under  this  power, 
and  this  notice  of  necessity  must  be  confined  to 
a  few,  and  be  very  brief. 


1  Chambers'  Encyclopaedia,  tit.  Speaker. 


NOTES    UPON    LECTURE    IV.  221 

The  treaty  known  as  Jay's  Treaty  was  the  lkcttirk  iv. 
most  important  concluded  during  tlie  adniinis-'^^^*' ''^''*''^' 
tration  of  President  Washington.  He  found,  on 
becoming  President,  Great  Britain  occupying  all 
the  principal  military  stations  within  our  terri- 
tory on  our  northern  frontier,  from  Oswego  to 
Detroit,  and  even  penetrating,  with  its  military 
forces,  into  the  interior  of  the  State  of  Ohio. 
Spain  was  in  possession  of  Natchez  and  was  aim-  * 
ing  at  Vicksburg.  The  two  powers  soon  after 
took  up  arms  against  France,  in  the  wars  of  the 
French  Revolution,  and  Great  Britain  began  to 
seize,  condemn,  and  confiscate  our  commerce  on 
the  high  seas,  on  frivolous  and  illegal  pretences, 
and  to  drao;  American  seamen  from  American 
ships,  and  force  them  into  British  service. 
France,  on  the  other  hand,  was  represented  in 
the  United  States  by  a  rash  and  imprudent 
envoy,  who  was  persistent  in  his  efforts  to  drive 
the  United  States  into  the  controversy  on  the 
side  of  France.  Washington  felt  that  the  coun- 
try needed  rest,  and  was  determined  to  remain 
neutral  if  it  were  possible  to  do  so.  With  this 
view  he  sent  Chief  Justice  Jay  to  London,  to 
settle  matters  with  England.  Jay  concluded 
there  on  the  19th  of  November,  1794,  the  treaty 
which  has  since  borne  his  name.  It  provided 
for  the  withdrawal  of  the  British  garrisons  ;  for 
joint  commissions  to  determine  the  claims  of 
British  subjects  against  the  United  States  and 
of  American  citizens  against  Great  Britain  ;  for 
the  payment  of  the  judgments,  and  for  various 
other  things ;    but    it   did    not   provide   for   an 


222  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  IV.  abandonment  by  Great  Britain  of  the  illegal 
Jay's  Treaty.  claims  luider  wliicli  the  acts  complained  of  had 
been  committed.  This  caused  great  excitement 
in  the  United  States,  and  became  the  rallying- 
point  of  those  who  opposed  the  ratification  of 
the  treaty,  and  who  desired  to  force  the  United 
States  into  the  war  on  the  side  of  France. 

The  treaty  was  ratified  however,  and  I  repeat 
here  what  was  said  some  years  ago  :  "  It  is  the 
judgment  of  history  that,  with  all  its  shortcom- 
ings, it  was  a  wise  measure.  We  came  out  of 
the  war  of  independence  poor ;  with  a  great 
debt ;  with  a  depreciated  paper  currency  emitted 
by  the  States,  and  emitted  by  authority  of  Con- 
gress ;  with  a  paralyzed  business,  and  with  a 
narrow  ribbon  of  population  along  the  shores  of 
the  Atlantic,  of  uncongenial  pursuits,  with  great 
difficulties  of  communication,  and  with  no  com- 
mon historical  traditions  prior  to  the  war.  With 
the  greatest  difficulty,  the  aversion  to  a  stronger 
Central  Government  was  overcome.  The  Con- 
stitution started  its  operation  in  time  of  peace, 
among  a  people,  a  large  minority  of  whom,  if 
not  an  actual  majority,  was  averse  to  it.  Jay's 
Treaty  secured  a  certainty  of  a  longer  time  of 
peace  for  it  to  take  root  and  grow.  If  we  had 
not  concluded  that  treaty,  we  might  have  been 
bound  in  honor  to  go  to  war  with  England  at 
that  time.  I  cannot  see  what  the  result  of  such 
a  war  would  have  been  ;  but  I  can  see  that,  by 
putting  off  taking  part  in  the  great  struggle  for 
eighteen  years,  we  secured  precious  time  for  the 
people  to  become  accustomed  and  attached   to 


NOTES    UPON    LECTURE    IV.  223 

the   new  form  of   government,   and  on  this  is  lecture  iv. 
foimded  the  opinion  that  the  measure,  however '^^^'^  "^""^^y- 
intrinsically  defective,  was  a  wise  turning-point 
in  our  history."^ 

This  treaty  introduced  the  custom  of  interna-  Settlement  of  in- 
tional  arbitration  of  private  claims,  which  has  ^•^'•"'^tionaiciaima 

■^  ^  by  treaty. 

now  become  so  common.  Some  sixty  years  ago 
it  was  said  by  the  Baron  de  Barante,  in  the 
French  Chamber  of  Peers,  while  discussing  the 
bill  for  the  overdue  instalments  on  the  French 
Convention  of  1831,  that  "the  United  States, 
when  the  laws  of  neutrality  are  violated  with 
respect  to  them,  do  not  go  to  war.  .  .  .  Without 
beginning  hostilities  they  protest,  quietlj  present 
their  claims,  and  when  the  time  comes  that  their 
good  will  is  needed,  or  their  friendship  sought,  ^ 

they  profit  by  the  occasion,  and  cause  the  settle- 
ment of  the  private  claims,  the  payment  of 
which  had  been  contested  or  deferred."^ 

It  is  impossible  to  overestimate  the  impor-  Treaty  ceding 
tance  of  the  Treaty  of  April  30,  1803,  with  1^"^^'^"^ 
France,  ceding  Louisiana.  "  History  fully  justi- 
fies the  wisdom  of  a  measure,  acquiring  the 
mouth  of  the  Mississippi.  Jay's  Treaty  and  this 
treaty  had  a  marked  influence  on  the  political 
history  of  the  country.  They  mainly  contrib- 
uted to  Avrest  the  Federal  Government  from  the 
hands  of  those  who  favored  the  adoption  of  the 
Constitution,  and  place  it  in  the  hands  of  those 


^  Cyclopaedia  of  Political  Science,  etc.,  tit.  Treaties  of  the  United 
States. 

2  Treaties  and  Conventions,  with  other  powers.  Introductory 
note,  p.  941,  orig.  ed. 


224 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  IV. 
Treaty  ceding 
Louisiaua. 


Treaty  of  Ghent. 


Treaty  ceding 
Florida. 


Treaty  cedins; 
California. 


who  opposed  it.  They  thus  converted  a  jealous 
and  astute  oligarchy  in  the  South  from  opponents 
into  supporters  of  the  new  form  of  government, 
and  made  it  their  interest  to  preserve  it  during 
the  long  years  that  they  held  power.  When  the 
day  of  change  at  last  came,  the  Constitution  had 
ceased  to  be  an  experiment.  It  had  traditions 
in  the  national  heart  deep  enough  to  protect 
it."^ 

The  Treaty  of  Ghent,  signed  December  24, 
1814,  which  made  peace  with  Great  Britain,  is 
remarkable  for  two  things :  First,  that  it  made 
no  provision  for  settling  the  j^rincipal  causes  of 
the  war*:  Second,  that  by  it  the  United  States 
lost  valuable  fights  in  the  Fisheries.  After 
resisting  Great  Britain's  construction  of  that 
treaty  in  this  respect,  a  construction  in  my 
judgment  manifestly  erroneous,  Mr.  Munroe 
finally  accepted  it  in  the  Treaty  of  1818.  This 
decision  has  been  the  cause  of  much  trouble 
since. 

By  the  Treaty  of  February  22,  1819,  with 
Spain,  we  acquired  the  Floridas ;  and  by  the 
Treaty  of  Guadalupe  Hidalgo,  terminating  the 
Mexican  War,  we  acquired  California.  The  first 
of  these  treaties  promised,  in  its  operation,  to 
perpetuate  the  power  of  the  slave-holding  States 
in  the  republic,  especially  when  it  was  fortified, 
in  this  respect,  by  the  annexation  of  Texas  ;  but 
the  second  operated  to  overcome  the  influence 
of   the  first;    and   to    restore  to  the  non-slave- 

1  Encyclopsedia  of  Political  Science,  etc.,  tit.  Treaties  of  the 
United  States. 


NOTES    UPON    LECTURE    IV.  225 

holding  States  the  healthy  influence  of  liberty  lecturk  iv. 

and  freedom.  Treaty  cediu« 

California. 

The  treaty  known  as  the  Clayton-Bulwer  ciaytou-uuiwer 
Treaty,  concluded  in  1850,  dispossessed  Great  *'"*^^^^' 
Britain  of  an  important  military,  naval,  and 
political  position  on  the  Isthmus,  at  a  time  when 
the  relative  strength  of  the  two  powers  was 
very  different  from  what  it  is  now ;  and,  as  con- 
strued by  the  United  States,  contains  no  contin- 
uing engagements  to  embarrass  them.  It  made 
possible  the  canal  which  is  now  in  course  of 
construction  across  Nicaragua. 

The  naturalization  treaties  negotiated  by  Mr.  Naturaiizatioa 
Bancroft  with  the  several  German  States,  put 
an  end  to  the  feudal  doctrine  of  perpetual  alle- 
giance, and  laid  the  foundation  for  similar  trea- 
ties with  other  States. 

The  Treaty  of  Washington  of  1871  with  Treaty  of  wash- 
Great  Britain  resulted  in  the  settlement  of  the  '°^  °°' 
Alabama  claims  in  accordance  with  the  demands 
of  the  United  States  ;  in  the  settlement  of  the 
water  boundary  between  the  United  States  and 
Vancouver  Island  upon  the  line  claimed  by 
the  United  States ;  and  in  an  adjustment  of  the 
Fishery  question,  which  proved  to  be  temporary 
and  unsuccessful. 

During  the  century  several  commercial  treaties  commercial 
have  been  made,  affecting  the  legislation  of  ^^^  '^* 
Congress  in  regard  to  customs  duties.  As  the 
Constitution  places  this  matter  within  the  con- 
trol of  the  House  of  Representatives  to  origi- 
nate, such  treaties  were  long  received  with 
disfavor  in  the  House.     Recent  legislation,  how- 


226  LECTURES  ON  CONSTITUTIONAL  LAW. 

Lecture  IV.       Gver,  seems  to  indicate  a  change  of  opinion  on 

J;™/"''''         this  subject,  and  a  disposition   on  the   part  of 

the  House  of  Representatives  to  concede  to  the 

treaty-making  power  the  right  to  settle  the  rates 

of  customs  duties. 

The  settlement  of  international  postal  rates 
by  treaty  or  convention,  and  the  international 
arrangements  for  the  surrender  of  fugitives 
from  justice,  are  modern  applications  of  the 
treaty-making  power  to  produce  most  useful 
results. 


V. 

THE  POWER   OF  TAXATION.^ 

Article  I,  Section  8,  Paragraph  1.  The  Con-  Lecturk  V. 
gress  shall  have  Power  to  lay  and  collect  Taxes, 
Duties,  Imposts  and  Excises,  to  pay  the  Debts  and 
provide  for  the  common  Defence  and  general  Wel- 
fare of  the  United  States  ;  but  all  Duties,  Imposts 
and  Excises  shall  be  uniform  throughout  the  United 
States  ; 

Article  I,  Section  7,  Paragraph  1.  All  Bills  for 
raising  Revenue  shall  originate  in  the  House  of  Repre- 
sentatives ;  but  the  Senate  may  propose  or  concur 
with  Amendments  as  on  other  Bills. 

Article  I,  Section  9,  Paragraph  4.  No  Capi- 
tation, or  other  direct.  Tax  shall  be  laid,  unless  in 
Proportion  to  the  Census  or  Enumeration  hereinbe- 
fore directed  to  be  taken. 

Article  I,  Section  10,  Paragraph  3.  No  State 
shall,  without  the  Consent  of  Congi-ess,  lay  any  Duty 
of  Tonnage,  etc. 

It  has  been  said  that  the  Federal  Government  Power  of  taxation, 
is  one  of  granted   or  conceded  powers.^      This 

1  This  is  Lecture  IV  of  the  Lectures  delivered  before  the  classes 
of  the  University  Law  School. 

2  '-The  Government  of  the  United  States  can  claim  no  powers 
which  are  not  granted  to  it  by  the  Constitution,  and  the  powers 
actually  granted  must  be  such  as  are  expressly  given,  or  given  by 
necessary  implication."  Story,  J.,  in  Martin  v.  Hunter's  Lessee^ 
1  Wheat.  304,  320. 

The  distinction  between  the  power  of  taxation  and  the  power  to 
regulate  commerce  existed  before  the  Revolution  ;  the  former  was 
asserted  to  belong  to  the  internal  polity  of  the  Colonies,  while  the 
latter  was  conceded  to  be  a  proper  exercise  of  the  imperial  authority. 

The  essential  principle  of   the  American  Revolution  was  that 

227 


228  LECTUIIES    ON    CONSTITUTIONAL    LAW. 

lectuke  V.  being  so,  even  the  most  cursory  examincation  of 
Power  of  taxation,  ^j^g  Constitution  of  the  United  States,  which  is 
the  great  charter  upon  which  it  was  founded 
and  is  still  carried  on,  will  show  that  among  all 
the  powers  given  l)y  that  instrument  none  are 
more  important  than  those  vested  in  the  legis- 
lative body,  or  Congress.  Without  attempting 
any  general  or  very  elaborate  exposition  of  all 
those  powers,  let  us  briefly  consider  some  of 
those  most  important  and  useful,  among  which 
your  attention  is  more  particularly  directed  to 
that  of  taxation.^ 

The  first  clause  of  section  8,  of  Article  I, 
declares  that :  — 

they  who  pay  the  taxes  should  control  the  levying  of  them.  The 
right  is  thus  wedded  to  the  power,  and  representation  and  taxation 
become  correlatives. 

The  principle  was  early  asserted  that  taxation  by  Parliament  in 
any  Colony,  without  its  consent,  was  tyranny.  It  had  been  the 
inspiration  of  Magna  Charta,  and  was  to  be  the  force  which  im- 
pelled the  Colonies  to  the  Revolution.  The  exclusive  power  of  tax- 
ation was  claimed  by  Virginia  in  1623;  and  treaty  was  made  with 
the  Parliament  of  the  Commonwealth  of  England  in  March,  1651, 
which  declared  that  the  Virginia  colonists  were  as  free  as  the  Eng- 
lish subjects;  that  their  assembly  should  transact  all  their  own 
affairs,  and  taxes  should  not  be  imposed,  or  forts  or  garrisons  main- 
tained in  that  Colony  without  their  consent.  Massachusetts  asserted 
the  same  doctrine  in  1()36,  and  it  was  reiterated  in  other  Colonies. 

1  The  power  is  not  judicial.  Its  collection  may  involve  the 
exercise  of  judicial  and  executive  functions.  Blackwell  on  Tax 
Titles,  26. 

It  is  as  incompetent  for  the  Legislature  to  confer  the  power  to 
tax  upon  the  judiciary  as  upon  the  executive.  Hardenbnrg  v. 
Eidd,  10  California,  402. 

This  power  of  taxation  belongs  in  this  country  to  the  legislative 
sovereignty,  State  and  national.  It  is  not  only  not  one  of  the 
inherent  powers  of  the  court  to  levy  and  collect  taxes,  but  it  is  an 
invasion  by  the  judiciary  of  the  Federal  government  of  the  legisla- 
tive functions  of  the  State  Government.  Heine  v.  Levee  Com- 
missioners, 19  Wall.  055,  001. 


THE    rOWER    OF    TAXATION.  229 

"  The  Congress  shall  have  power  to  lay  and  lecture  v. 
collect  taxes,  duties,  hnposts  and  excises,  to  pay  e*'«"*«'*'»® 
the  debts  and  provide  for  the  common  defence 
and  general  welfare  of  the  United  States  ;  ^  but 
all  duties,  imposts  and  excises  shall  be  uniform 
throughout  the  United  States." 

It  may  be  noted  that  the  language  is  "  to  lay 
and  collect  taxes,  duties,  imposts  and  excises," 
and  then  there  comes  a  comma,  after  which  it 
continues,  "  to  pay  the  debts  and  provide  for 
the  common  defence  and  general  welfare  of  the 
United    States."  ^     Whether   this   latter   clause 


^  This  language  was  not  novel.  Compare  the  objects  of  union 
among  the  States  as  stated  in  the  Articles  of  Confederation.  In 
Article  III  it  is  "for  their  common  defence,  the  security  of  their 
liberties,  and  their  mutual  and  general  welfare."  In  Article  VIII 
"all  charges  of  war,  and  all  other  expenses  that  shall  be  incurred 
for  the  common  defence,  or  general  welfare  "  shall  be  defrayed  out 
of  a  common  treasury.  Similar  language  is  used  in  the  Ninth 
Article. 

A  government  ought  to  contain  in  itself  every  power  requisite 
to  the  full  accomplishment  of  the  objects  committed  to  its  care,  and 
the  complete  execution  of  the  trusts  for  which  it  is  responsible;  free 
from  every  other  control,  but  a  regard  to  the  public  good,  and  to 
the  sense  of  the  people.     The  Federalist,  No.  31  (Hallowell  ed.). 

2  In  the  transcript  of  the  Constitution  as  printed  in  the  Revised 
Statutes,  p.  19,  there  is  only  a  comma  after  the  word  "excises," 
which  was  the  end  of  the  clause  in  the  first  draft  when  reported  in 
the  convention,  a  semicolon  only  appearing  after  the  following 
word  "  States."  The  same  is  also  true  of  the  carefully  corrected 
copy  found  in  Hickey's  Constitiition.  It  would  appear,  therefore^ 
that  the  proper  value  to  be  attached  to  this  clause  and  its  true 
meaning,  as  intended  by  the  wise  and  learned  framcrs  of  this 
instrument,  are  best  exemplified  by  considering  the  latter  part  of 
the  clause  as  a  limitation  upon  the  power  given  by  the  opening 
words.  Story  in  his  work  on  the  Constitution  prints  it  in  the  same 
way,  but  remarks,  section  012,  that  in  the  revised  draft  in  the  con- 
vention there  was  a  semicolon  and  paragraph  as  in  the  other  cases; 
that  it  so  stands  now  in  some  copies,  and  it  is  said  so  stands  in  the 
ofiBcial  copy,  with  a  semicolon  interposed.     In  the  Federalist  this 


230 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  V. 
Kxtftiit  of  bhe 
power. 


was  put  there  as  a  distinctive  power,  or  as  a 
limitation  upon  the  power  of  taxation,  has  been 
a  question  much  controverted.  Not  being  a  dis- 
tinct clause  by  itself,  it  would  seem  probable 
that  these  words  are  a  limitation  upon  the  pur- 
poses for  which  taxes  may  be  laid  and  collected.^ 
At  one  time  I  did  not  concur  in  this  peculiar 
manner  of  punctuating  this  instrument  by  com- 
mas and  semicolons,  without  a  period  coming 
in  between  the  opening  words  of  this  eighth 
section,  "Congress  shall  have  power,"  and  the 
eighteenth  clause  with  which  it  concludes.  This 
clause,  however,  in  regard  to  paying  the  debts 
and  providing  for  the  common  defence  and  gen- 
eral welfare,  constitutes  a  proper  qualification 
of  the  power  to  collect  taxes,  and  in  what  may 
be  called  the  same  sentence  is  followed  by  the 
limitation  requiring  all  duties,  excises,  and  im- 


punctuation  is  referred  to,  and,  referring  to  the  complaint  that  the 
language  amounts  to  an  unlimited  commission  to  exercise  every 
power  which  may  be  alleged  to  be  necessary,  it  is  asked  "what 
color  can  the  objection  have  when  the  specification  of  the  objects 
alluded  to  by  these  general  terms  immediately  follows;  and  is  not 
even  separated  by  a  longer  pause  than  a  semicolon?"  Federal- 
ist, No.  41,  Hallowell  ed. ;  40  Dawson's  ed. 

i  This  view  was  concisely  and  strongly  presented  by  Mr.  Jeffer- 
son in  his  opinion  on  the  Bank  of  the  United  States,  February  15, 
1791.  He  says  :  "  To  lay  taxes  to  provide  for  the  general  welfare 
of  the  United  States,  that  is  to  say,  "to  lay  taxes /or  the  purpose 
of  providing  for  the  general  welfare."  For  the  laying  of  taxes  is 
the  power,  and  the  general  welfare  the  purpose  for  which  the  power 
is  to  be  exercised.  They  are  not  to  lay  taxes  ad  Uhitum  for  any 
purpose  they  please  ;  but  only  to  pay  the  debts  or  provide  for  the 
welfare  of  the  Union.  In  like  manner,  they  are  not  to  do  anything 
they  please  to  provide  for  the  general  welfare,  but  only  to  lay  taxes 
for  that  purpose."  7  Jefferson's  Works,  557.  And  the  same  con- 
struction has  been  placed  upon  this  language  by  other  eminent  men 
of  that  period.     Hamilton,  GeiTy,  Ellsworth,  and  others. 


THE    POWER    OF    TAXATION".  231 

posts   to  be   uniform ;    so    that  it  seems  prob-  lectueb  v. 
able  that  the  meaning  is  that  Congress  shall  ^'''*'°* ''^  ^'^^ 

"  *->  power. 

have  power  to  lay  these  taxes  and  collect  them 
in  order  "  to  pay  the  debts  and  provide  for  the 
common  defence  and  general  welfare."  ^ 

The  importance  in  the  study  of  constitutional  History  of  consti- 
law  of  this  subject  of  the  power  of  taxation,  as  ^^^^°°^  taxation, 
exercised  by  both  the  Federal  and  State  govern- 
ments, can  hardly  be  overestimated.  It  would 
be  curious  and  interesting  to  examine  into  the 
origin,  growth,  and  progress  of  methods  of  taxa- 
tion as  a  means  of  carrying  on  the  business  of 
government,  but  it  is  unnecessary  to  go  further 
back  than  the  feudal  ages  to  note  the  fact  that 
no  taxes  were  needed  then  to  carry  on  the  pub- 
lic institutions.  The  monarch,  king,  duke,  or 
other  sovereign  of  a  particular  district  or  coun- 
try was  generally  the  owner  of  a  large  propor- 
tion of  the  soil.  The  men  who  cultivated  it 
were  his  villeins,  serfs,  or  tenants.  The  theory 
of  English  land  tenures  to-day  is,  that  the  orig- . 

1  The  Government  of  the  Union  is  a  Government  of  the  people  ; 
it  emanates  from  them  ;  its  powers  are  granted  by  them  ;  and  are 
to  be  exercised  directly  on  them  and  for  their  benefit.  Though  lim- 
ited in  its  powers,  it  is  supreme  within  its  sphere  of  action.  If  the 
end  be  legitimate,  and  within  the  scope  of  the  Constitution,  all  the 
means  which  are  appropriate,  which  are  plainly  adapted  to  that 
end  or  not  prohibited,  may  constitutionally  be  employed  to  carry 
It  into  effect.     McCulloch  v.  Maryland,  4  Wheat.  316. 

Congress  is  authorized  to  lay  and  collect  taxes,  etc.,  to  pay  the 
debts,  and  provide  for  the  common  defence  and  general  welfare  of 
the  United  States.  .  .  .  Congress  is  not  empowered  to  tax  for  those 
purposes  which  are  within  the  exclusive  province  of  the  States. 
Gibbons  v.  Ogden,  9  Wheat.  1,  199. 

Taxation  purely  in  aid  of  personal  or  private  objects  is  beyond 
the  legislative  power  and  an  unauthorized  invasion  of  private  right. 
Loan  Association  v.  Topeka,  20  Wall.  655,  662. 


232  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkcturk  V.        inal  title  is  in  the  king,  and  that  everybody  who 
History  of  consti- j^      ^^  interest  in  the  land  is  a  tenant.     There 

tutioual  taxation. 

is  no  such  thing  known  in  England,  though  it 
may  be  in  some  other  countries,  as  an  allodial 
title ;  that  is,  one  which  is  absolute,  such  as  we 
have  in  this  country,  to  the  ownership  of  the 
soih^  Out  of  this  fact  come  many  of  the  diffi- 
culties American  students  find  in  regard  to  the 
doctrines  pertaining  to  estates  and  tenancies. 
Our  laws  have  been  freed  from  a  large  part  of 
those  intricacies  and  traditional  requirements, 
which  were  the  outgrowth  of  centuries  of  devel- 
opment among  our  English  ancestors  regarding 
the  holding  of  land,  but  their  influence  still  em- 
barrasses our  judicial  system. 

A  sovereign  who  owned  all  the  land  of  a  coun- 
try, and  who  could  impose  such  terms  as  he 
pleased  on  the  people  who  cultivated  it,  naturally 
did  not  need  any  taxes,  in  the  ordinary  use  of 
that  term.  It  was  customary,  however,  to  take 
rents,  and  generally  services,  in  addition  to  the 
revenues  derived  by  the  prince  from  his  own 
large  domain,  which  was  cultivated  by  his  own 
servants.  He  was  also  attended  by  a  retinue  of 
followers,  his  feudatories,  sub-tenants,  or  lords, 
who  each  had  their  following.     War  was  made 


1  In  England  all  land  is  held  mediately  or  immediately  of  the 
king,  and  there  is  no  allodial  tenure.  The  greatest  dominion  rec- 
ognized over  property  by  the  English  law  is  expressed  by  the  words 
"tenancy  in  fee  simple."  In  America,  however,  the  title  of  land 
is  essentially  allodial.  In  New  York,  Pennsylvania,  Connecticut, 
Virginia,  Michigan,  and  perhaps  other  States,  lands  have  been 
declared  to  be  allodial  and  free  from  every  vestige  of  feudal  tenure. 
4  Kent.  Com.  2. 


THE    POWER    OF    TAXATION.  233 

by  the  prince  calling  on  those  who  owed  him  lkcturk  v. 
allegiance  to  come  forward  with  their  followers,  "•■^/"''y  "/  t-onsti- 

&  '  tutional  taxation. 

and  by  thus  joining  together  their  forces  form 
an  army  with  which  the  sovereign  could  take 
the  field.  Many  a  kingdom  was  won  or  lost  by 
the  failure  of  the  feudatory  chiefs  to  come  for- 
ward to  fight  in  response  to  such  a  call.  Each 
was  generally  expected  to  bear  his  own  ex- 
penses, while  the  cost  of  the  Central  Govern- 
ment the  king  paid  himself.  He  was,  indeed, 
but  little  more  than  a  superior  chief. 

We    cannot,   however,    trace    the    history   of  our  provisions 
those  customs  farther  at  this  time  than  to  sav,  ^'^"y*''^/'"^™ 

-J  '  England. 

that  the  great  revolution  in  England,  by  which 
the  constitutional  rights  of  the  people  were 
finally  established,  wherein  Charles  I  lost  his 
head  and  James  II  had  to  flee  the  country,  was 
caused  by  a  question  of  taxation.  The  old 
methods,  to  which  reference  has  been  made,  for 
getting  the  means  of  maintaining  the  public 
authority  had  become  exhausted.  The  king 
had  not  soil  or  country  enough  to  furnish  means 
for  his  proper  support,  and  that  of  his  govern- 
ment, and  so  he  had  gradually  come  to  receive 
assistance  from  the  people  by  the  House  of  Com- 
mons voting  him  certain  concessions,  as  they 
called  them,  out  of  the  wealth  of  the  country 
every  two  or  three  years,  which  was  called  their 
free  offering. 

This  was  the  free  offering  of  the  Commons 
and  not  of  the  Lords. 

This  fact  is  the  origin  of  that  provision  in 
the  Constitution  of   the   United   States  declar- 


254  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  V.        ing  that   "  all   bills    for    raising   revenue    shall 

Our  provisions  •    •        .         •         .i  tt  r      t>  x    i*  " 

derived  from        Originate    m    the    House    01    Kepresentatives 
England.  (Art.  I,  scc.  7,  par.  1),  which  body,  under  our 

political  system,  may  be  compared  with  the 
English  House  of  Commons.  That  more  nearly 
representative  and  popular  body,  in  comparison 
with  the  House  of  Lords,  Avas  very  jealous  of 
its  dignity  and  prerogatives.  The  Commons, 
claiming  to  represent  the  people,  said,  in  effect, 
that  what  they  gave  to  support  the  government 
was  their  money ;  that  the  prince  could  not  get 
it  unless  they  voted  it,  and  that  they  did  not 
propose  to  allow  the  Lords  to  originate  a  bill 
declaring  that  they  raised  the  money  without 
their  assistance.^ 

Questions  growing  out  of  taxation,  the  meth- 
ods by  which  it  should  be  levied,  and  its  col- 
lection enforced,  have  always  been  troublesome, 
and  they  have  frequently  led  to  public  disturb- 
ances and  even  to  prolonged  wars.  Out  of  the 
taxation  of  tea,  and  the  taxation  by  means  of 
stamps,  imposed  upon  the  American  Colonies  by 
Great  Britain,  arose  the  difficulties  which  culmi- 
nated in  the  revolution  that  secured  their  inde- 
pendence. But  after  a  while  it  came  to  be 
understood,  at  least  in  all  civilized  nations,  that 
government  must  be  carried  on,  not  by  the 
revenue  derived  from  the  domain  of  the  sover- 
eign or  money  belonging  to  him,  but  by  contri- 


^  All  bills  for  granting  money  must  have  their  beginning  in  the 
House  of  Commons  ;  the  Lords  cannot  take  this  object  into  their 
consideration  but  in  consequence  of  a  bill  presented  to  them  by  the 
latter.     De  Lolme,  Constitution  of  England,  p.  59,  ed,  London,  1834. 


THE    POWER    OF    TAXATION.  235 

butions  from  the  people.  A  tax  is  a  contribution,  LErTURE  v. 
and  the  modern  and  free  orovernments  organized  ?""!  prov'Hions 

~  ~  (lenveu  from 

for  the    benefit   of   society,  must  depend  upon  England, 
them  for  their  support.     The  definition  by  both 
Webster  and  Story  is  that  "  a  tax  is  a  contribu- 
tion imposed  by  government  on  individuals  for 
the  service  of  the  State."  ^ 

When,  therefore,  the  members  of  the  conven- 
tion assembled  from  the  various  States,  for  the 
purpose  of  forming  an  organic  law  for  the  gov- 
ernment of  the  new  nation,  which  was  intended 
to  be  permanent  in  its  character,  the  very  first 
power  that  they  conferred  upon  Congress  was 
that  of  laying  and  collecting  taxes,  duties,  im- 
posts, and  excises,  for  the  purpose  (if  it  may  be 
so  construed)  of  paying  the  debts  and  providing 
for  the  common  defence  and  general  welfare. 
It  will  be  observed  that  it  does  not  say  "all 
taxes,"  because  in  another  clause  of  the  same 
instrument  it  is  said  that  "  no  capitation,  or 
other  direct  tax  shall  be  laid,  unless  in  propor- 
tion to  the  census  or  enumeration,"  directed  to 
be  taken.  Art.  I,  sec.  9,  par.  4.  It  has  been 
a  troublesome  question  to  determine  what  was 

1  Taxes  are  defined  as  being  tlie  enforced  proportional  contri- 
bution of  persons  and  property,  levied  by  the  authority  of  the  State 
for  the  support  of  the  government,  and  for  all  public  needs.  They 
are  the  property  of  the  citizen,  demanded  and  received  by  the 
government  to  be  disposed  of  to  enable  it  to  carry  into  effect  its 
mandates,  and  to  discharge  its  manifold  functions.  Cooley  on 
Taxation,  1. 

The  power  to  tax  is  granted  for  the  beneiit  of  the  vt^hole  people, 
and  none  have  any  right  to  complain  if  the  power  is  fairly  exercised 
and  the  proceeds  properly  applied  to  discharge  the  obligations  for 
which  the  taxes  were  imposed.  —  North  Alissouri  liailroad  Co.  v. 
Maguire,  20  Wall.  46,  60. 


236 


LECTURES    ON    CONSTITUTIONAL    LAW. 


IjECTittie  v. 
Our  provisions 
derived  from 
England. 
Capitation  tax. 


Direct  tax. 


meant  by  the  expression  "direct  taxes"  as  dis- 
tinguished from  other  taxes. 

A  "  capitation  tax  "  is,  of  course,  so  much  a 
head,  and  must  be  levied  according  to  the  popu- 
lation, as  determined  by  the  census.  It  can  be 
levied  in  no  other  way.  But  it  is  not  so  easy 
to  determine  what  is  a  "direct  tax." 

The  question  has  been  before  the  Supreme 
Court  of  the  United  States  several  times,  and 
has  been  the  subject  of  comment  in  both  Houses 
of  Congress.  One  principle  upon  which  all 
have  agreed  is,  that  a  direct  tax  must  be  made 
upon  each  State  in  proportion  to  its  population. 
When  a  direct  tax  is  laid,  as  was  done  in  the 
beginning  of  the  late  war,  and  was  the  case 
shortly  after  the  organization  of  our  Govern- 
ment, the  amount  of  money  to  be  raised  is  first 
ascertained,  then  the  population  of  each  State  is 
taken,  according  to  the  last  census,  after  which 
it  is  a  simple  matter  of  division  to  find  out  the 
proportion  or  quota  due  from  each  State.  A 
statute  is  then  passed,  declaring  that  each  State 
shall  pay  to  the  Federal  Government  so  much 
money,  according  to  their  ascertained  proportion 
of  the  whole  amount  which  it  is  proposed  to 
raise. 

But  suppose  the  State  does  not  pay  it  ?  In  re- 
gard to  this  it  may  be  said  that  in  all  instances 
where  a  direct  tax  has  been  laid,  except  in  the 
case  of  some  of  the  States  engaged  in  the  late 
rebellion,  the  obligation  has  been  promptly  as- 
sumed, and  each  State  has  taken  its  own  means 
of  collecting  the  sum  for  which  it  was  assessed. 


THE    POWER    OF    TAXATION.  237 

This  amount  was  then  paid  into  the  national  lectuek  v. 
treasury.  But  during  that  contest  the  States  ^'"^^'^  ""■ 
that  did  not  sympathize  with  tlie  loyal  side  did 
not  want  to  help  the  Federal  Government  by- 
raising  money  for  its  use.  Congress,  therefore, 
passed  a  law  appointing  connnissioners,  whose 
duty  it  was  to  go  into  those  States  as  fast  as 
they  were  subjugated,  following  up  the  armies, 
and  ascertain  the  value  of  the  landed  estate  as 
reported  by  their  own  tax  officers.  The  assess- 
ment was  then  levied  against  this  real  property, 
and  in  many  cases  it  was  sold  to  pay  the  amount 
required.  Growing  out  of  these  transactions 
extensive  controversies  have  arisen  and  many 
suits  to  determine  whether  the  provisions  under 
which  those  things  were  done  were  such  as  to 
make  the  sales  valid. 

Under  the  provisions  already  quoted  the  ques- 
tion then  came  up  as  to  what  is  a  "  direct  tax," 
and  also  upon  what  property  it  is  to  be  levied, 
as  distinguished  from  any  other  tax.  In  regard 
to  this  it  is  sufficient  to  say  that  it  is  believed 
that  no  other  than  a  capitation  tax,  of  so  much 
per  head,  and  a  land  tax,  is  a  direct  tax  within 
the  meaning  of  the  Constitution  of  the  United 
States.  All  other  taxes,  except  imposts,  are 
properly  called  excise  taxes.  Direct  taxes,  within 
the  meaning  of  the  Constitution,  are  only  capi- 
tation taxes  as  expressed  in  that  instrument, 
and  taxes  on  real  estate.^ 

J   Sprinricr  v.  United  Slates,  102  U.  S.  58G. 

Mr.  Justice  Chase  said  in  1796:  "I  am  inclined  to  think,  but 
of  this  I  do  not  give  a  judicial  opinion,  that  the  direct  taxes  con- 


238  LECTURES    ON    CONSTITUTIONAL   LAW. 

1.BCTURE  V.  An  excise  tax  is  one  which  is  assessed  upon 

Excise  tax.  some  article  of  personal  property,  or  money,  or 

something  which  is  exhausted  in  the  use.  It  is 
one  which  from  its  essence  and  nature  must  be 
paid  in  fact  by  the  buyer,  or  the  last  man  who 
buys  and  uses  the  property,  because  whoever  has 
it  at  the  time  when  the  tax  is  levied  upon  it 
adds  that  amount  to  the  selling  price  when  he 
comes  to  dispose  of  it,  until  the  property  is  con- 
sumed. It  is  a  tax  upon  consumption.  It  was 
at  one  time  doubted  by  some  whether  the  late 
income  tax  was  an  excise  or  a  direct  tax,  and 
a  case  to  test  this  question  was  taken  to  the 
Supreme  Court  of  the  United  States.  It  was, 
however,  abandoned.  It  is  now  entirely  clear 
that  the  former  view  was  the  correct  one,  and 

A  tax  on  incomes  that  the  amouut  asscsscd  upon  incomes  was  in 

an  excise  tax.       ^^^^  nature  of  an  excise  tax. 

The  next  words  of  the  phrase  under  discussion 
are  "  duties,  imposts,  and  excises."  ^     The  first 

templated  by  the  Constitution,  are  only  two  ;  namely,  the  capitation 
or  poll  tax,  simply  without  regard  to  property,  profession,  or  any 
other  circumstance  ;  and  a  tax  on  land.  I  doubt  whether  a  tax  by 
a  general  assessment  of  personal  property  within  the  United  States 
is  included  within  the  term  direct  taxes."  The  same  opinion  was 
expressed  by  Mr.  Justice  Paterson.  In  that  case  it  was  decided 
that  a  tax  on  carriages  was  not  a  direct  tax.  Hylton  v.  United 
States,  3  Dall.  171,  175. 

A  tax  on  the  income  of  an  insurance  company  has  been  held 
not  to  be  a  direct  tax,  but  a  duty  or  excise.  Pacific  Ins.  Co.  v. 
Soule,  7  Wall.  433,  444. 

A  tax  of  ten  per  centum  upon  the  circulation  of  State  banks  was 
held  not  to  be  a  direct  tax.      Veazie  Bank  v.  Ffuno,  8  Wall.  533. 

1  Paterson,  J.,  said:  "What  is  the  natural  and  common  or 
technical  and  appropriate  meaning  of  the  words  duty  and  excise, 
it  is  not  easy  to  ascertain.  They  present  no  clear  and  precise  idea 
to  the  mind.  Different  persons  will  annex  different  significations 
to  the  terms."     Hylton  v.  United  States,  3  Dall.  171,  17G. 


THE    POWER    OF    TAXATION.  239 

two,  SO  far  as  this    Constitution    is   concerned,  lecture  v. 
maybe  considered  as  implyino;  the  same  thins::,  "^  ^'^^  °" '"°°™®* 

•/  r  J       n  c"  an  excise  tax. 

except  that  the  word  "  imposts "  means  more 
properly  a  duty  or  tax  upon  goods  imported  from 
abroad,  whereas  there  might  be  exports,  a  tax 
upon  which  would  be  a  duty.  The  Constitution, 
however,  in  another  place  forbids  the  Federal 
Government  levying  any  tax  or  duty  upon  arti- 
cles exported  from  any  State  (Art.  1,  sec.  9, 
par.  5.),  so  that  there  can  be  no  tax  upon  exports, 
and  the  words  "  duties  "  and  "  imposts  "  practi- 
cally mean  the  same  thing. 

"All  duties,  imposts,  and  excises,"  or  all  taxes  uniformity  of 
that  are  not  direct,  are  required  to  be  "  uniform  t^^*'^^^"- 
throughout  the  United  States."  What  is  meant 
by  that  word  ''uniform"  has  become  a  matter 
of  very  great  importance,  because  the  States  have 
begun,  of  late  years,  to  adopt  that  principle  in 
their  constitutions,  and  to  require  that  their 
taxes  shall  be  levied  with  regard  to  the  restric- 
tion of  uniformity.  So  that  the  question  has 
frequently  arisen  as  to  what  was  a  proper  defini- 
tion of  that  term. 

Does  it  mean  that  all  property  that  is  taxed 
shall  be  at  the  same  rate  or  ratio  ?  That  would 
perhaps  be  a  natural  inference  at  first  thought. 
That  is,  if  horses,  wagons,  and  land  are  taxed, 
then  the  same  per  cent  of  value  must  be  assessed 
upon  the  horses  and  wagons  as  upon  the  land. 
The  result  of  tliis  principle  would  be  that,  as  a 
very  heavy  rate  is  imposed  upon  whiskey,  any 
other  article  upon  which  it  is  thus  proposed  to 
raise  a  revenue  would  have  to  be  taxed  in  the 


240  LECTURES    ON    CONSTITUTIONAL    LAW. 

i.KCTURE  V.        same  high  proportion.     This  rate  has  frequently 
Uniformity  of      ^  ^^^^^^j^  ^^  ^^^^  hundred  per  cent  of  its 

taxation.  '■ 

original  value  —  much  larger  than  most  articles 
could  bear. 

The  greater  part  of  the  money  that  is  raised 
to  support  the  Government  by  taxation  is  raised 
by  duties  upon  imports  from  abroad.  But  the 
articles  which  are  imported  are  taxed  very  dif- 
ferently. For  example,  silk  may  be  taxed  at 
sixty  cents  on  the  dollar  of  its  value.  Coffee 
may  be  taxed  ten  cents  on  the  dollar  of  its  value. 
Are  these  uniform  ?  If  they  are  not,  then  very 
few  of  our  tax  laws  are  valid. 

We  are,  however,  relieved  from  any  difficulty 
in  regard  to  that  question,  by  the  peculiar  lan- 
guage in  which  the  provision  is  stated,  "  but  all 
taxes,  imposts,  and  excises  shall  be  uniform 
throughout  the  United  States."  They  are  not 
required  to  be  uniform  as  between  the  different 
articles  that  are  taxed,  but  uniform  as  between 
the  different  places  and  different  States.  Whis- 
key, for  instance,  shall  not  be  taxed  any  higher 
in  the  State  of  Illinois,  or  Kentucky,  where  so 
much  of  that  article  is  produced,  than  it  is  in 
Pennsylvania.  The  tax  must  be  uniform  on  the 
particular  article ;  and  it  is  uniform  within  the 
meaning  of  the  constitutional  requirement  if  it 
is  made  to  bear  the  same  percentage  over  all  the 
United  States. 

That  is  manifestly  the  meaning  of  this  word, 
as  used  in  this  clause.  The  framers  of  the  Con- 
stitution could  not  have  meant  to  say  that  the 
Government,  in  raising  its  revenues,  should  not 


THE    POWER    OF    TAXATION.  24 

be  allowed  to  discriminate  between  the  articles  lectlkk  v. 

which  it  should  tax.  Unifomityof 

taxation. 

This  conclusion  has  come  to  bo  accej^ted  as 
the  well-settled  construction  of  this  clause  in 
regard  to  uniformity,  and  it  bothers  the  State 
authorities  now  more  than  the  Federal  officers. 
The  people  in  the  States  are  every  day  resisting 
the  collection  of  taxes,  upon  the  ground  that 
they  are  not  uniform,  although  imposed  under 
their  own  statutes.  The  better  opiuion  seems 
to  be  that  what  is  meant  by  the  use  of  that  term 
in  such  statutes  is  not  uniformity  as  to  place. 
They  operate  only  upon  one  State,  and  when 
they  use  the  words  "  taxes  must  be  uniform," 
they  mean  uniform  with  regard  to  the  subject 
of  the  tax. 

This  has  been  productive  of  some  trouble.  A 
State  might  wish  to  tax  whiskey  and  tobacco 
higher,  than  a  man's  plough  or  corn-field ;  and  this 
might  be  prevented  by  confining  the  meaning 
of  this  lanei;uaQ:e  within  too  narrow  bounds.  The 
difficulties  in  the  way  of  this  construction  have, 
however,  been  very  largely  obviated  by  the  mean- 
ing of  the  word  "  uniform,"  which  has  been 
adopted,  holding  that  the  uniformity  must  refer 
to  articles  of  the  same  class.  That  is,  different 
articles  may  be  taxed  at  different  amounts,  pro- 
vided the  rate  is  uniform  on  the  same  class 
everywhere,  with  all  people,  and  at  all  times. 

Take,  for  instance,  the  case  of  a  license.  If 
everybody  in  any  particular  class  is  required  to 
pay  a  certain  license,  —  if  all  lawyers  are  taxed 
$25  a  year,  if  all  merchants  are  taxed  $100  a 


242  LECTURES    ON    CONSTITUTIONAL    LAW. 

lecturk  V.        year,  if  all  saloon-keepers  are  taxed  $200  a  year, 
taxatiou**^^  °       —  then  it  is  uniform,  because  it  imposes  the  same 
burden  upon  every  man  of  the  same  class,  and 
who  comes  within  the  circle  of  its  well-defined 
limits.      This    interpretation    may    be    a    little 
strained,  but  probably  it   has  arisen  from  the 
necessity   of   enabling  the   Legislature  to   levy 
taxes   according  to  common  sense,  if  not  alto- 
gether with  regard  to  strict  uniformity. 
Limits  of  the  tax-      One  of  the  most  interesting,  as  well  as  impor- 
log  power.  tant,   of  tlic  brauclies  into   which  this   subject 

naturally  divides,  is  that  in  regard  to  the  limits 
of  the  taxing  power.  In  this  country  it  is  every- 
where accompanied  by  the  necessity  that  the  tax 
shall  be  imposed  for  a  public  use.  No  State 
government,  nor  that  of  the  United  States,  nor 
any  other  authority  professing  a  regard  for  the 
rights  of  the  people,  is  at  liberty  to  take  money 
out  of  their  pockets  for  any  other  than  a  public 
purpose.  Whenever  it  can  be  discovered  that  a 
tax  is  levied  for  something  that  cannot  properly 
be  called  such,  it  may  be  successfully  resisted  by 
all  the  measures  that  the  law  allows  in  courts  of 
justice.^ 


1  "  The  power  to  tax  is  the  strongest  and  most  pervading  of  all 
the  powers  of  government,  reaching  directly  or  indirectly  to  all 
classes  of  people.  It  was  said  by  Chief  Justice  Marshall,  in  the 
case  of  3IcCuUnrh  v.  Maryland,  4  Wheat.  .^16,  431,  that  the  power 
to  tax  is  the  power  to  destroy.  A  striking  instance  of  the  truth  of 
the  proposition  is  seen  in  the  fact  that  the  existing  tax  of  ten  per 
cent  imposed  by  the  United  States  on  the  circulation  of  all  other 
banks  than  the  national  banks,  drove  out  of  existence  every  State 
bank  of  circulation  within  a  year  or  two  after  its  passage.  This 
power  can  as  readily  be  employed  against  one  class  of  individuals 
and  in  favor  of  another,  so  as  to  ruin  the  one  class  and  give  unlim- 


THE    POWER    OF    TAXATION.  243 

It  is  very  difficult  in  a  general  way,  in  a  lecture  v. 
government  like  ours,  to  say  in  any  particular  p^^^^  ^^^^^ 
instance  where  an  act  of  Congress  has  authorized 
a  certain  tax  to  be  levied,  under  which  any 
money  has  been  collected,  paid  into  the  treasury 
of  the  United  States,  and  distributed  under  other 
acts  of  the  legislative  branch  by  its  proper  offi- 
cials, has  been  levied  or  collected  for  any  other 
than  a  public  use.  Sometimes  the  use  may  not 
be  approved  by  sound  public  sentiment ;  never- 
theless it  is  necessary  to  give  the  legislative 
bod}^  the  benefit  of  the  presumption  that  they 
acted  in  the  exercise  of  a  reasonable  discretion, 
when  they  profess  to  have  levied  the  tax  for  a 
public  purpose. 

In  some  cases,  however.  States,  counties,  and 
municipalities,  w^hich  have  a  subordinate  right 
of  taxation,  have  so  far  departed  from  that  prin- 
ciple that  taxes  levied  by  them  have  been  en- 
joined. Perhaps  the  greatest  number  of  contests 
which  have  originated  in  regard  to  this  subject 
have  had  relation  to  taxes  imposed  for  the  pur- 
pose of  assisting  in  the  construction  of  railroads. 

ited  wealth  and  prosperity  to  the  other,  if  there  is  no  implied  limi- 
tation of  the  uses  for  wliich  the  power  may  be  exercised.  To  lay 
with  one  hand  the  power  of  the  Government  on  the  property  of  the 
citizen,  and  with  the  other  to  bestow  it  upon  favored  individuals  to 
aid  private  enterprises  and  build  up  private  fortunes,  is  none  the 
less  a  robbery  because  it  is  done  under  the  forms  of  law  and  is 
called  taxation.  This  is  not  legislation.  It  is  a  decree  under  legis- 
lative forms.  .  .  .  We  have  established,  we  think  beyond  cavil, 
that  there  can  be  no  lawful  tax  which  is  not  laid  for  a  public  pur- 
pose.''''    Loan  Association  v.  Topeka,  20  Wall.  (555,  664. 

Taxes  are  burdens  or  charges  imposed  by  the  Legislature  upon 
persons  or  property  to  raise  money  for  public  purposes.  Cooley 
on  Constitutional  Limitations,  479. 


244 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lkcture  V. 
Taxes  levied  for 
public  usea. 


Mouicipal  taxa- 
tion. 


If  a  private  individual  should  ask  the  municipal- 
ity of  Washington  to  levy  a  tax  to  enal)le  him 
to  build  a  road  from  his  house  out  to  the  Soldier's 
Home,  in  the  outskirts  of  the  city,  which,  wlien 
completed,  should  belong  to  him,  and  across 
which  he  could  put  up  gates  at  any  time  at  his 
own  pleasure,  everybody  would  see  at  once  that 
it  was  not  for  public  but  for  private  use.  There 
is  not  a  judge  in  the  District  of  Columbia  who 
would  not  enjoin  the  collection  of  a  tax  so 
assessed  and  levied  upon  the  people. 

On  the  other  hand,  a  tax  levied  to  keep  up 
the  streets  and  roads  in  the  city  and  county, 
which  everybody  travels  and  uses,  is  a  tax  for  a 
public  use ;  and  although  there  has  been  a  great 
deal  of  litigation  in  the  courts  for  the  purpose 
of  getting  rid  of  these  taxes,  and  stubborn  resist- 
ance made  to  their  collection,  yet  it  has  been 
upon  the  ground  of  their  alleged  inequality  or 
improper  levy  or  assessment ;  not  that  the  Gov- 
ernment had  not  the  authority  to  levy  them  for 
such  public  thoroughfares. 

But  the  main  difficulty  arises  when  we  come 
to  the  case  of  a  corporation,  which  has  built  a 
road  by  the  expenditure  of  its  own  funds.  That 
road  so  built  belongs  to  it,  and  it  has  a  right  to 
compel  everybody  who  travels  over  it  or  uses  it 
to  pay  for  such  service  or  privilege.  This  fare 
which  it  receives  is  its  compensation  therefor, 
and  goes  into  its  hands  for  its  own  purposes, 
whether  it  be  large  or  small  in  amount.  It  is 
true  that  the  property  which  has  thus  come  into 
existence  belongs  to  the  corporation  in  one  sense, 


THE    POWER    OF    TAXATION.  245 

and  yet  in  another  it  is  one  in  which  the  public  lecturk  v. 
have  an  interest.  The  people,  by  whom  the  ^J;;'"'^^ ''^ 
right  to  construct  such  a  road  nuist  first  have 
been  granted,  are  entitled  to  its  use  as  a  high- 
way under  reasonable  regulations  for  the  pro- 
tection of  the  rights  of  all  persons  concerned. 
The  corporation  cannot  refuse  to  carry  any  per- 
son who  properly  presents  himself  to  be  carried. 
It  must  maintain  the  usual  and  suitable  means 
of  doing  a  carrying  business.  It  is  generally 
authorized  to  exercise  the  right  of  eminent 
domain  in  order  to  acquire  the  land  on  which 
its  ro;id  may  be  built,  and  although  it  must  pay 
a  reasonable  compensation  therefor,  yet  it  is  a 
public  function  which  cannot  be  exercised  unless 
it  be  authorized  by  some  constitutional  provision 
or  the  act  of  some  legislative  body.  It  is,  there- 
fore, said  in  some  senses  to  be  a  public  body, 
and  proposals  to  take  stock  in  it  by  a  State  or  a 
county  are  one  of  the  great  sources  from  which 
controversies  arise. 

Many  such  political  bodies,  in  their  great 
enthusiasm  for  public  improvements,  have  over- 
burdened themselves  with  obligations  for  the 
purpose  of  assisting  in  the  construction  of  rail- 
roads, which  they  afterwards  found  it  almost 
impossible  to  meet  when  the  day  of  payment 
arrived.  So  they  sometimes  attempted,  more  or 
less  directly,  to  repudiate  these  debts,  and  one 
of  the  ways  in  which  they  tried  to  do  this  was 
by  alleging  that  the  assessment  of  a  tax  for 
their  liquidation  was  void,  because  it  was  not 
for  a  public  purpose. 


246  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkcture  V.  They  said,  in  effect,  that  the  corporation  re- 

Muuicipai  taxa-  (.gjy^j  ^jj^^ij.  mo^ey,  Collected  its  tolls,  and  appro- 
priated the  profits  growing  out  of  its  business  to 
its  own  private  uses,  such  as  the  payment  of 
dividends  to  its  stockholders,  or  the  improve- 
ment of  its  plant.  On  the  other  hand,  the 
municipal  body  alleged  that  the  road  could  not 
have  been  built  without  the  power  of  eminent 
domain,  and  even  when  it  was  built  it  was  not 
permitted  to  retain  absolute  control  of  its  man- 
agement ;  that  it  was  subjected  to  certain  regu- 
lations as  to  the  carriasre  and  accommodation 
of  passengers,  as  well  as  its  rates  therefor,  and 
could  not  reject  one  man  and  carry  another  at 
its  own  pleasure,  and  that  it  was  also  bound  to 
keep  its  road  in  good  order ;  that  it  was  not, 
in  fact,  for  all  purposes  private  property, ,  but 
possessing  a  public  character  was  subject  to 
public  supervision.^ 

It  is  now  pretty  well  settled  that  building  a 
railroad  with  money  collected  by  taxation,  by  a 
State,  county,  or  town,  is  an  appropriation  of 
such  a  tax  for  a  public  use,  and  therefore  a  law 
imposing  or  authorizing  it  is  valid.  On  the 
other  hand,  a  contribution  to  build  a  saw  mill, 
or  a  steam  mill,  or  anything  of  that  kind,  was 
not  made  for  a  public  use,  and  a  tax  levied  for 
such  purpose  was  void.^  The  same  question  has 
also  been  discussed  and  decided  in  several  other 
similar  cases.     "  It  must  be  for  a  public  object, 

1  Pittsburgh  &  Connpllsville  Bailrnad  Co.  v.  Southwestern  Penn- 
sylvania Railway  Co.,  77  Penn.  St.  173. 

2  Loan  Association  v.  Topeka,  20  Wall.  655. 


THE    POWER    OF    TAXATION.  247 

clearly   superior  and   parairiouiit,   or  to    which  lkctuke  v. 
preference  is  expressly  given  by  law  or  the  Con-  ^j^^'^' '*'''''''  ^''''^' 
stitution,  in  order  to  make  the  right  clear  to 
seize  and  condemn  land."  ^ 

The  United  States  being  a  limited  form  of 
government,  one  of  the  restrictions  to  which  it 
is  subject  is  in  regard  to  its  power  to  levy  taxes. 
The  States  may  levy  them  for  a  great  many 
purposes  for  which  Congress  cannot,  because  to 
the  States  belong  all  of  the  powers  not  delegated 
to  Congress.^  Hence,  while  the  Constitution  of 
the  United  States  has  nowhere  been  amended  by 
any  limitation  of  its  taxing  power,  there  has 
scarcely  been  a  State  constitutional  convention 
in  half  a  century  that  has  not  imposed  some 
restriction  upon  the  power  of  the  State  to  levy 
taxes. 

There  is,  also,  another  matter  concerning  this  Limitations  of 
power  of  taxation  that  deserves  attention..  It  congLT^'"*^ 
will  be  noted  that  the  Constitution  of  the  United 
States  has  placed  several  limitations  upon  the 
general  power,  and  that  some  of  them  are  im- 
plied. One  of  its  provisions  is  that  neither  the 
President  of  the  United  States  (Art.  II,  sec.  1, 
par.  6),  nor  a  judge  of  the  Supreme  or  inferior 
courts  (Art.  Ill,  sec.  1),  shall  have  his  salary 
diminished  during  the  period  for  which  he  shall 
have  been  elected,  or  during  his  continuance 
in  office.  It  is  very  clear  that  when  Congress, 
during  the  late  war,  levied  an  income  tax,  and 

1  United  States  v.  CMai(/o,  7  How.  185,  195.  See  also  Pumpelly 
V.  Green  Bay  Co.,  1-3  Wall.  166. 

*  Art.  X,  Amendments  to  Constitution. 


248  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkctuuk  V.        placed  it  as  well  upon  the  salaries  of  the  Presi- 
i.i.niutions  of      j^.^|.   ^^^j  ^j^^  iudo'es  of   tlic  coiii'ts  as  those   of 

taxmj;  jxjvver  of  . 

(Vmgi-oss.  other  people,  that  it  was  a  diiuiiiutioii  of  them 

to  just  that  extent. 

The  judges  were  patriotic,  however,  and  did 
not  raise  the  question,  although  Chief  Justice 
Taney  filed  with  the  Clerk  of  the  Supreme 
Court  an  opinion  stating  that  it  was  unconsti- 
tutional and  ought  not  to  be  paid.  Yet  every- 
body did  pay  their  taxes,  and  possibly  they  could 
not  have  helped  themselves  if  the}^  had  tried, 
because  the  accounting  officers  would  have  de- 
ducted the  amount  of  the  tax  from  the  salary 
before  paying  it.  Even  after  the  war  this  tax 
of  five  per  cent  upon  these  salaries  was  deducted 
and  paid.  But  about  that  period  Mr.  Bout  well, 
who  was  then  Secretary  of  the  Treasury,  of  his 
own  accord  took  up  the  question,  investigated 
it,  and  came  to  the  conclusion  that  this  tax  was 
void  so  far  as  these  officers  were  concerned.  He, 
therefore,  returned  the  money  to  the  President 
and  to  each  of  the  judges,  which  had  been  paid 
under  that  statute,  and  this  they  naturally 
thought  was  a  very  fair  judicial  construction 
of  the  constitutional  provisions  relating  to  that 
subject.^ 

1  A  tax  upon  the  salary  of  an  officer,  to  be  deducted  from  what 
would  otherwise  be  payable  as  salary,  is  a  diminution  of  his  com- 
pensation ;  and  in  the  cases  of  the  President  and  judges  of  the 
Supreme  Court  and  inferior  courts  of  the  United  States,  such  dimi- 
nution would  fall  within  the  prohibition  of  the  Constitution,  if  the 
act  levying  the  tax  was  enacted  during  the  official  term  of  the  Pres- 
ident or  of  the  judge  affected  thereby.  See  Opinion  of  Attorney 
General  Hoar,  October  23,  1869,  13  Opinions  Attorneys  General,  161. 

But  it  is  also  well  settled  that  an  act  reducing  the  compensation 


THE    POWER    OF    TAXATION.  249 

But  the  main  limitations  upon  the  power  of  lkcture  v. 
taxation,  found  in  the  Constitution  of  the  United  ''""'^'^tions  on 

'  taxiiijj  power  of 

States,  are  upon  the  States.  One  of  these  is  that  the  states. 
"  no  State  shall,  without  the  consent  of  Congress, 
lay  any  imposts  or  duties  on  imports  or  exports, 
except  what  may  be  absolutely  necessary  for 
executing  its  inspection  laws."  Art.  I,  sec.  10, 
par.  2.^ 

The  several  States  just  after  the  close  of  the 
Revolutionary  War  commenced  with  almost  a 
fury  to  tax  everything  belonging  to  any  other 
State  that  came  within  their  jurisdiction,  and 
what  is  known  as  the  commerce  clause  of  the 
Constitution, which  declares  that  "Congress  shall 
have  power  to  regulate  commerce  with  foreign 
nations  and  among  the  several  States,  and  with 
the  Indian  tribes,"  was  the  result  of  the  neces- 
sity of  preventing  each  individual  State  from 
embroiling  itself  in  all  sorts  of  quarrels  in  re- 
gard to  its  commercial  relations  with  its  neigh- 

or  salary  of  a  statutory  officer  is  valid  in  the  absence  of  any  consti- 
tutional prohibition,  although  he  may  have  entered  upon  his  term 
of  service,  and  that  such  an  act  violates  no  contract  rights.  That 
there  is  no  express  or  implied  contract  for  the  permanence  of  the 
salary,  is  shown  by  the  constitutional  provision  making  an  excep- 
tion of  certain  officials,  such  as  the  judges.  Cases  cited  in  Black 
on  Constitutional  I'rohibitions,  §§  90,  97,  pp.  116,  117.  But  after 
services  have  been  rendered  under  a  law,  resolution  or  ordinance, 
which  fixes  the  rate  of  compensation,  there  arises  an  implied  con- 
tract to  pay  for  this  service  at  that  rate.  This  contract  is  a  com- 
pleted contract.  Its  obligation  is  perfect  and  rests  on  the  remedies 
which  the  law  itself  gives  for  its  enforcement.  Fisk  v.  Jefferson 
Police  Jimj,  116  U.  S.  131. 

1  It  is  well  settled  that  the  States  cannot  exercise  this  authority 
in  respect  to  any  of  the  instrumentalities  which  the  General  Gov- 
ernment may  create  for  the  performance  of  its  constitutional  func- 
tions.    Axistin  V.  Aldermen,  7  Wall.  694,  699. 


250 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  V. 
Limitations  on 
taxing  power  of 
the  States. 


bors,  and  going  on  to  pass  statutes  levying  taxes 
of  one  kind  or  anotiier  upon  everything  brought 
within  its  borders.  The  result  of  this  course 
would  have  been  clearly  disastrous  to  the  whole 
people,  as  well  as  to  the  Federal  Government 
that  it  was  proposed  to  erect,  in  place  of  the 
Confederation  under  which  the  Colonies  had 
emerged  from  the  perils  of  war.^ 

The  additional  restriction  relating  to  this  sub- 
ject, besides  that  found  in  the  commerce  clause, 
is  that  above  quoted,  prohibiting  any  State,  with- 
out the  consent  of  Congress,  from  laying  any 
imposts  or  duties  on  imports  or  exports.  This 
language  implies  that  they  may  do  it  if  Congress 
consents.  Such  exceptions  granted  by  that  body 
have  been  of  rare  occurrence.  In  the  early  days 
there  were  a  few  statutes  passed,  giving  the  con- 
sent of  Congress  to  the  imposition  of  limited 
duties  in  order  to  enable  the  States  to  improve 
their  harbors. 

The  same  clause  of  the  Constitution  also  ex- 
cepts by  its  specific  terms  such  as  may  be  abso- 
lutely necessary  for  executing  the  inspection 
laws  of  the  particular  State,  but  that  has  never 
amounted  to  much,  and  the  only  question  of  any 
importance  that  has  ever  arisen  about  the  taxa- 


1  The  author  of  the  Federalist,  No.  7,  refers  to  the  situation  of 
New  York,  as  compared  with  that  of  Connecticut  and  New  Jersey, 
as  affording  an  example  of  the  opportunities  which  some  States 
had  of  rendering  others  tributary  by  commercial  regulations  ;  and 
said  that  New  York  would  neither  be  willing  nor  able  to  forego  the 
advantage  of  levying  duties  on  importations,  a  large  part  of  which 
must  necessarily  be  paid  by  the  individuals  of  the  other  two  States 
in  the  capacity  of  consumers. 


THE    POWER    OF    TAXATION.  251 

tion  of  imports  or  exports  has  been  whether  the  lecture  v. 
words  applied   to  articles   carried,  between   the  ,^'""*'"'^'*""*"", 

■•■  ^  tiixiii;?  power  of 

States.  tlie  States. 

It  has  been  held  ^  that  the  word  "  imports,"  imports, 
as  used  in  this  clause,  did  not  apply  to  articles  * 
imported  or  transported  from  one  State  into 
another,  and  that  they  were  not  imports  or  ex- 
ports within  the  meaning  of  the  Constitution ; 
that  it  only  referred  to  articles  imported  from 
foreign  countries  into  the  United  States.  The 
latter  was  a  case  in  which  Alabama  had  passed 
a  statute  taxing  all  the  whiskey  imported  into 
the  State.  It  was  insisted  that  it  was  an  im- 
port, and  consequently  its  tax  in  that  way  was 
forbidden  by  the  clause  now  under  discussion. 
The  court,  however,  held  that  it  was  not  an 
import,  and  the  tax  was  not  void  for  that  reason. 
A  similar  tax  for  the  same  rate  or  amount  had 
been  levied  upon  all  whiskey  produced  in  Ala- 
bama, and  the  statute  was,  therefore,  not  void 
because  there  was  no  discrimination  against  the 
commerce  of  any  other  State. 

An  important  question  was  also  raised  in  the  The  cotton  tax. 
Supreme  Court  of  the  United  States  in  regard 
to  the  cotton  tax.  During  the  war  a  tax  was 
imposed  upon  that  staple,  and  about  twenty  mil- 
lions of  dollars  were  raised  by  its  means.  Its 
collection  was  resisted  on  the  ground  that  it  was 
a  tax  upon  exports,  and  'the  argument  w^as  that, 
as  four-fiftlis  of  all  the  cotton  raised  in  the  coun- 
try was  in    fact   exported,  therefore   a   tax  on 

1  Woodruff  V.  Parham,  8  Wall.  123 ;  Hinson  v.  Lott,  8  WalL 
148. 


commerce. 


252  LECTURES    OX    CONSTITUTIONAL    LAW. 

lkcture  V.        cotton  was  necessarily  a  tax  on  exports.     The 

The  cotton  tax.     .^^.^jj^^^t  on  the  othcr  side  was  that  when  the 

cotton  was  actually  exported,  then  any  amount 

levied  upon  it  would  be  a  tax  upon  exports,  but 

^      that  it  could  not  be  assumed  that  all  the  cotton 

raised  in  this  country  was  to  be  exported. 

Tax  on  interstate       The  Supreme    Court  was  divided  upon    that 

question,   and  it  stood   in    that  way  until    the 

October  Term,  1885,^  when  the  subject  was  again 

discussed,  and  the  following  language  used :  — 

"  Goods,  the  product  of  a  State,  intended  for 
exportation  to  another  State,  are  liable  to  taxa- 
tion as  part  of  the  general  mass  of  property  of 
the  State  of  their  origin,  until  actually  started 
in  course  of  transportation  to  the  State  of  their 
destination,  or  delivered  to  a  common  carrier  for 
that  purpose ;  the  carrying  of  them  to,  and  de- 
positing them  at,  a  depot  for  the  purpose  of 
transportation  is  no  part  of  that  transportation. 
"  When  goods,  the  product  of  a  State,  have 
begun  to  be  transported  from  that  State  to 
another  State,  and  not  till  then,  they  have  be- 
come the  subjects  of  interstate  commerce,  and, 
as  such,  are  subject  to  national  regulation,  and 
cease  to  be  taxable  by  the  State  of  their  origin.'* 
This  principle  was  afterwards  reasserted  and 
affirmed.^ 

There  is  another  restriction  of  the  same  class 
that  may  be  noted  in  tfiis  connection,  and  which 
has  been  the  subject  of  a  great  deal  of  comment 
in  the  Supreme  Court  of  the  United  States.     It 

1  Ooe  V.  Errol,  116  U.  S.  517. 

2  Turpiii  V.  Burgess,  117  U.  S.  504. 


THE    POWER    OF    TAXATION.  253 

is  to  be  found  in  the  following  language  :  "  No  lecturk  v. 
State  shall,  without  the  consent  of  Congress,  lay '^'^^^  «"  "'t«"*a*« 

'  o  '       ./  commerce. 

any  duty  of  tonnage."     Art.  1,  sec.  10,  par.  3. 

The  meaning  of  this  expression,  as  may  be  Tonnage  tax. 
gathered  from  the  numerous  decisions  in  that 
court,  undoubtedly  is,  that  vessels  coming  from 
abroad,  or  engaged  in  navigation  among  the 
States,  or  even  if  plying  entirely  within  the 
boundaries  of  and  owned  by  citizens  of  a  single 
State,  shall  not  be  taxed,  as  vessels,  for  the 
privilege  of  navigating  the  inland  waters  of 
the  country,  or  coming  into  any  of  its  ports. 
In  State  Tonnage  Tax  Cases,^  the  court  held 
that  "  although  taxes  levied,  as  on  property,  by 
a  State,  upon  vessels  owned  by  its  citizens,  and 
based  on  a  valuation  of  the  same,  are  not  pro- 
hibited by  the  Federal  Constitution,  yet  taxes 
cannot  be  imposed  on  them  by  the  State  at  so 
much  per  ton  of  registered  tonnage."  Such 
taxes  are  within  the  prohibition  of  the  clause 
under  consideration. 

The  word  "  tonnage  "  was  used  by  the  framers 
of  the  Constitution,  because  at  that  day  and  time 
it  was  the  customary  mode  of  measuring  the 
value  of  a  ship.  A  vessel  was  said  to  be  of  so 
many  tons  burden,  which  meant  that  it  Avas 
worth  so  much  money,  carried  so  much  freight, 
and,  therefore,  the  method  generally  adopted  of 
imposing  a  tax  upon  its  tonnage  was  the  readiest 
way  to  fix  the  amount  which  that  species  of 
property  should  pay.  But  the  Constitution  for- 
bids any  tonnage  tax,  and  so  the  Supreme  Court 

1  12  Wall.  204. 


254  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  V.        has  been  Called  upon  over  and    over   again  to 
onnagetax.        (Jecide  what  that  means. 

After  much  discussion  it  has  about  settled 
down  to  mean  this :  that  if  a  man  living  in 
Louisiana  owns  a  steamboat,  it  is  liable  to  be 
taxed  like  any  other  property  that  he  may  pos- 
sess there,  and  if  a  tax  is  levied  upon  it,  measured 
by  its  capacity,  which  is  called  tonnage,  that  is 
not  a  tonnage  tax.  But  when  a  vessel  enters 
the  port  of  New  Orleans  from  abroad,  or  from 
some  point  up  the  river,  and  lands  at  a  wharf, 
or  moors  out  in  the  middle  of  the  stream,  and 
the  city  or  State  demands  that  it  shall  pay  a  tax 
for  every  time  that  is  done,  it  is  in  fact  a  tonnage 
tax  within  the  meaning  of  the  constitutional  pro- 
vision, because  it  is  a  tax  on  the  privilege  of 
navigating  the  river  and  entering  the  harbor. 
It  cannot  be  evaded  by  not  measuring  it  by  the 
ton,  or  by  calling  it  by  some  other  name.  A 
reasonable  charge  may  be  made  for  services 
actually  rendered,^  but  this  great  privilege  of  the 


1  "A  charge  for  services  rendered,  or  for  conveniences  provided, 
is  in  no  sense  a  tax  or  a  duty.  It  is  not  a  hindrance  or  impediment  to 
free  navigation.  Tlie  prohibition  to  the  State  against  the  imposition 
of  a  duty  of  tonnage  was  designed  to  guard  against  local  hindrances 
to  trade  and  carriage  by  vessels,  not  to  relieve  them  from  liability 
to  claims  for  assistance  rendered  and  facilities  furnished  for  trade 
and  commerce.  It  is  a  tax  or  a  duty  that  is  prohibited :  something 
imposed  by  virtue  of  sovereignty,  not  claimed  in  right  of  proprietor- 
ship. Wharfage  is  of  the  latter  character.  Providing  a  wharf  to 
which  vessels  may  make  fast,  or  at  which  they  may  conveniently 
load  or  unload,  is  rendering  them  a  service.  .  .  .  What  was 
intended  by  the  second  clause  of  the  tenth  section  of  the  first  article 
was  to  protect  the  freedom  of  commerce  and  nothing  more,  .  .  . 
and  therefore  the  prohibition  should  be  so  construed  as  to  carry 
out  that  intent."     Packet  Co.  v.  Keokuk,  95  U.  S.  80,  84,  87. 

In  a  later  case  the  Supreme  Court  said  that  a  duty  of  tonnage  is 


THE    POWER    OF    TAXATION.  255 

free  navigation  by  all  persons  of  the  waters  of  lecture  v. 
this  country  is  thus  secured  against  interference  """^^'^ 
on  the  part  of  the  individual  States  of  the  Union.^ 
In  a  recent  case  decided  in  1880,'^  may  be 
found  a  full  review  of  all  the  principal  cases 
upon  this  sul>ject,  together  witli  a  full  exposi- 
tion of  the  doctrines  upon  which  this  clause  of 
the  Constitution  rests.  The  State  of  Louisiana 
had  required  by  a  statute  that  each  vessel  pass- 
ing a  quarantine  station  should  pay  a  certain 
fee  for  examination  as  to  her  sanitary  condition. 
This  was  held  to  be  a  part  of  the  quarantine 
system,  and  a  compensation  for  services  rendered 
to  the  vessel,  and  not  a  tax  within  the  meaning 


a  charge  for  the  privilege  of  entering  or  trading  or  lying  in  a  port 
or  harbor,  while  wharfage  is  a  charge  for  the  use  of  a  wharf.  They 
are  not  the  same  thing.  Transportation  Co.  v.  Parkarsburg,  107 
U.  S.  G91. 

The  fact  that  the  rates  of  wharfage  charged  are  graduated  by  the 
size  or  tonnage  of  the  vessel  is  of  no  consequence,  and  does  not 
make  it  a  duty  of  tonnage  in  the  sense  of  the  Constitution  and  the 
acts  of  Congress.  Cannon  v.  New  Orleans,  20  Wall.  577  ;  Packet 
Co.  V.  CatU'ttshurg,  105  U.  S.  559. 

1  The  State  of  Illinois  legislated  for  the  construction  of  locks 
on  the  Illinois  River,  and  created  a  Board  of  Commissioners  who 
prescribed  certain  tolls  for  the  passage  of  vessels,  which  were  fixed 
at  so  much  per  ton  according  to  the  tonnage  measurement  of  the 
vessels  and  the  freight  carried.  The  court  held  that  this  was 
simply  a  mode  of  fixing  the  rate  according  to  the  size  of  the  vessel 
and  the  amount  of  property  carried,  and  was  in  no  sense  a  duty  of 
tonnage  within  the  prohibition  of  the  Constitution.  It  said :  "  A 
duty  of  tonnage  within  the  meaning  of  the  Constitution  is  a  charge 
upon.a  vessel,  according  to  its  tonnage,  as  an  instrument  of  com- 
merce, for  entering  or  leaving  a  port,  or  navigating  the  public 
waters  of  the  country- ;  and  the  prohibition  was  designed  to  prevent 
the  States  from  imjiosing  hindrances  of  this  kind  to  connnerce 
carried  on  by  vessels."     Huse  v.  Glover,  119  U.  S.  543,  549. 

2  Morgan'' s  Steamship  Co.  v.  Louisiana  Board  of  Health,  118 
U.  S.  455. 


25G  LECTURES    ON    CONSTITUTIOXAL    LAW. 

lectukk  V.        of    the   Constitution   concerning   tonnage    taxes 

Tonnage  tax.        i^nposed  by  the  States. 

Implied  liinita-         In  addition  to  tlie  specific  restrictions  which 

poTer!'"''*'''''""  ^^6  fix^^  ^y  constitutional  or  statutory  authority, 
there  are  implied  limitations  upon  the  power  of 
taxation  which  grow  out  of  the  nature  of  things. 
It  was  a  terse  statement  of  a  great  truth  which 
was  made  by  Chief  Justice  Marshall  in  the  great 
case,  in  regard  to  the  United  States  Bank,^  that 
the  power  to  tax,  where  unlimited,  involves  the 
power  to  destroy.  This  may  at  first  appear  to 
have  been  a  rather  strong  statement,  but  it  was 
not.  Any  government  or  municipality  possess- 
ing unlimited  power  to  tax  any  property,  any 
business,  or  any  man,  can  drive  that  property, 
that  business,  or  man  out  of  the  community. 
This  is  true,  because  it  can  make  the  tax  equal 
to  all  that  he  earns,  or  all  that  he  is  capable  of 
earning,  or  equal  to  all  the  property  that  he  has. 
So  that  the  Chief  Justice  was  not  stating  it  too 
strongly  when  he  said  that  the  unlimited  power 
of  taxation  was  the  power  to  destroy.^ 

This  expression  was  used  in  reference  to  the 
United  States  Bank,  when  the  State  of  Maryland 
undertook  to  tax  its  circulation ;  for  if  the  State 
could  tax  that  part  of  its  business  at  all,  it  could 
drive  the  bank  out  of  the  State,  at  least  so  far 
as  circulation  was  concerned.  Then  if  the  State 
taxed  the  circulation,  it  could  tax  the  deposits 


1  McCuUoch  V.  Maryland,  4  Wheat.  310. 

2  The  right  of  taxation,  where  it  exists,  is  necessarily  unlimited 
in  its  nature.  It  carries  with  it  inherently  the  power  to  embarrass 
and  destroy."     Austin  v.  Aldermen.,  7  Wall.  694,  699. 


THE    POWER    OF    TAXATION.  257 

of  the  bank,  and  could  thus  force  it  to  withdraw  lecture  v. 
entirely  from  its  jurisdiction.     Tliat  was  one  of  ;."'!'"«' !;"';«''-. 

J  J  tionsto  the  taxing 

the  great  cases  arising  early  in  the  history  of  power, 
the  establishment  of  our  institutions,  in  which 
very  important  constitutional  questions  came  up 
for  consideration,  which  it  was  essential  to  the 
future  peace  and  prosperity  of  the  country,  as 
well  as  to  insure  the  perpetuity  of  the  new  Gov- 
ernment, then  only  in  its  experimental  stage, 
should  be  wisely  and  permanently  settled.  It 
was  decided  in  that  case,  that  the  State  had  no 
power  to  tax  the  bank,  because  it  was  the  instru- 
ment of  the  United  States,  and  a  State  could  not 
tax  anything  which  the  United  States  required 
for  its  use  in  the  administration  of  the  Govern- 
ment, or  "  any  of  the  constitutional  means 
employed  by  the  Government  of  the  Union  to 
execute  its  constitutional  powers."  ^ 

It  was  also  held  that  the  bonds  of  the  United  income  from 
States  could  not  be  taxed,  such  a  power  being  vTited^stat'es  not 
inconsistent  w^ith  the  constitutional  power  of  the  taxable  by  states. 
Government  to  borrow  money,  as  enabling  the 
State  to  exclude  such  securities  from  its  mar- 
kets.^   So  they  are  not  taxed  to-day,  and  cannot 
be  taxed  by  a  State,  even  indirectly  by  a  tax 
on  valuation.^     So  also  of  United  States  notes, 

1  See  McCulloch  v.  Maryland,  4  Wheat.  316.  The  principle  of 
exemption  is,  that  the  State  cannot  control  the  National  Govern- 
ment within  the  sphere  of  its  constitutional  powers,  for  there  it 
is  supreme,  and  cannot  tax  its  obligations  for  payment  of  money 
issued  for  purposes  within  tha?t  range  of  powers,  because  such  tax- 
ation necessarily  implies  the  assertion  of  the  right  to  exercise  such 
control. 

-  Bank  of  Cimmrrcp  v.  Xeio  York,  2  Black,  620. 

3  Bank  Tax  Case,  2  Wall.  200. 


258  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  V.        altlioiigli  issucd  as  currencj,  they  are  yet  na- 
incomefrom        tional  obligations  and  exempt  from  State  taxa- 

boiuls  01  tno  ^  <-'  ^ 

United  States  not  tion.^ 

Side's  o^  United      Neither  can  any  State  authority  tax  the  sala- 
states  officers  not  ries  or  emoluments    of   officers   of   the   United 

taxable  by  States.  c>,,     ,9  <•  Xii-i.-i.i-  n    j 

States/  or  oi  any  oi  the  mstitutions  now  called 
national  banks ;  but  Congress  put  into  their 
charters,  originally,  a  provii^ion  permitting  the 
shares  to  be  taxed,  at  the  home  of  the  person 
who  owned  them,  by  including  them  in  the 
valuation  of  the  personal  property  of  the  person 
or  corporation  to  whom  they  belonged,  at  the 
place  where  the  bank  was  located.  (An  act  to 
provide  a  national  currency,  secured  by  a  pledge 
of  the  United  States  bonds,  and  to  provide  for 
the  circulation  and  redemption  thereof.  Ap- 
proved June  3,  1864.^)  To  guard  against  the 
destruction  of  the  banks,  however,  by  the  States, 
or  unjust  discrimination  even  in  the  exercise  of 
that  privilege,  it  was  declared  by  that  statute 
that  such  taxes  shall  not  exceed  the  rates  im- 
posed upon  the  shares  in  any  of  the  banks 
organized    under    the    authority    of    the    State 

1  Bank  of  New  York  v.  Supervisors,  7  Wall.  26. 

Chief  Justice  Marshall  said :  "  The  tax  on  Government  stock  is 
thought,  by  this  court,  to  be  a  tax  on  the  contract,  a  tax  on  the 
power  to  borrow  money  on  the  credit  of  the  United  States,  and 
consequently  repugnant  to  the  Constitution."  Weston  v.  City  of 
Charleston,  2  Pet.  449,  469. 

2  The  compensation  of  an  officer  of  the  United  States  is  fixed 
by  a  law  made  by  Congress.  It  is  in  its  exclusive  discretion  to 
declare  what  shall  be  given,  and  any  law  of  a  State  imposing  a  tax 
upon  the  office,  diminishing  the  recompense,  is  in  conflict  with  the 
law  of  the  United  States  which  secures  the  allowance  to  the  officer. 
Dobbins  v.  Erie  Coiinty  Commissioners,  16  Pet.  435. 

8  13  Stat.  c.  105,  §  41,  pp.  99,  112. 


THE    POWER    OF    TAXATION.  259 

where    such   association    was   located,   or   upon  lecturk  v. 
other  moneyed  capital   in    the    hands   of    indi- f'^'"'^^ '""'■'* 

•^  ^  States  olhcers  uot 

viduals.  taxable  by  Stateii, 

The  shareholder  is  thus  protected  from  undue 
impositions  by  providing  that  everybody  else, 
under  like  circumstances,  must  be  taxed  as 
much  as  he  is,  or  in  the  same  proportion.  This 
is  fully  considered  in  McCulloch  v.  Maryland, 
supra}  See  also  Oshorn  v.  United  States  Bank^ 
and  the  case  of  Weston  v.  Charleston,  supra^  in 
which  the  city  council  of  Charleston  luidertook 
to  tax  Government  bonds  in  the  hands  of  some 
of  its  citizens.  It  was  there  held  that  this  could 
not  be  done,  because  "  the  American  people  have 
conferred  the  power  of  borrowing  money  on  the 
Government,  and  by  making  that  Government 
supreme,  have  shielded  its  action  in  the  exercise 
of  that  power,  from  the  action  of  the  local  gov- 
ernments. The  grant  of  the  power,  and  the 
declaration  of  supremacy,  is  a  declaration  that 
no  such  distraining  or  controlling  power  shall 
be  exercised." 

A  great  many  decisions  have  been  made  to  set- 
tle this  doctrine.  The  States  have  been  fertile  in 
constantly  devising  many  means  to  tax  banks,  if 
possible,  and  the  recent  volumes  of  reports  of  the 
Supreme  Court  are  full  of  cases  having  relation 
to  such  attempts,  and  the  discussions  which  they 
have  elicited.  One  case  which  may  be  referred 
to  in  this  connection  is  that  of  the  People 
V.  Weaver}     The  State  of  New  York  passed  a 

1  4  Wheat.  816.  »  2  Pet.  449. 

2  9  Wheat.  738.  *  100  U.  S.  539. 


260  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  V.  law  declaring  that  whenever  a  man  listed  his 
sSe1'offic^-s  not  personal  property  for  taxation,  he  might  except 
taxable  by  States,  out  of  it  an  amount  equal  to  all  the  debts  he 
owed,  which  should  not  be  taxed.  The  Legis- 
lature then  passed  another  law  stating  that  the 
first  should  not  apply  to  shares  of  national  banks. 
This  the  courts  held  to  be  unconstitutional.  If 
the  owner  of  one  or  more  shares  in  a  national 
bank  was  not  to  be  allowed  to  deduct  what  he 
owed  from  the  amount  of  his  taxable  property, 
in  which  those  shares  were  included,  then  other 
persons  could  not  be  allowed  to  take  out  what 
they  owed  in  the  taxation  of  their  personal 
property. 

Indiana  unsuccessfully  tried  the  same  tiling,^ 
and  there  have  been  many  attempts  by  different 
States  to  tax  banks  in  violation  of  this  clause  of 
the  Constitution,  and  of  the  statutes  of  the 
United  States.  See  also  Cummings  v.  The 
Merchants  National  Bank? 
Tax  upon  travel-  There  is  another  rather  curious  instance  where 
^^^'  the  States  have  been  forbidden,  by  the  decisions 

of  the  courts,  to  use  the  power  of  taxation.  It 
was  first  discussed  in  the  case  of  Crandall  v. 
Nevada,^  where  the  principle  was  declared  that 
every  man  in  this  broad  country  had  a  right  to 
travel  all  over  it,  for  purposes  of  business  or 
pleasure,  regardless  of  State  lines,  and  that  no 
state  could  levy  a  tax  upon  him  for  that  privi- 
lege. The  State  of  Nevada  attempted  to  com- 
pel certain  transportation  companies  within  its 

1  Evansville  Bank  v.  BriUnn,  105  U.  S.  Z12.       2  101  u.  S.  153. 
a  (5  Wall.  35. 


TPIE    POWER    OF    TAXATION.  261 

boundaries  to  make  a  report  of  every  passenger  lfxture  v. 
that  thev  carried  through  the  State,  for  each  of '^^'^  "p^*^ '^^^■^'- 

"  _    <^  '  lers. 

which  they  were  required  to  pay  one  dollar.  Of 
course  this  was  practically  a  tax  upon  the  pas- 
senger, because  it  was  simply  added  to  his  fare 
by  the  companies.  In  one  instance  the  payment 
was  resisted,  and  the  matter  came  up  in  the 
usual  way  to  the  Supreme  Court  of  the  United 
States,  where  the  statute  was  declared  to  be 
unconstitutional  and  void.  If  this  had  been  the 
extent  of  the  effect  of  the  declaration  of  this 
principle,  it  would  have  been  comparatively 
unimportant,  for  the  total  amount  collected  by 
the  State  of  Nevada  was  not  very  large ;  but  it 
so  transpired  that  the  State  of  New  Jersey  had 
been  for  many  years  collecting  a  similar  tax 
upon  every  passenger  who  passed  through  that 
State  on  a  railroad,  and  as  the  traffic  was  very 
heavy  the  amount  was  correspondingly  impor- 
tant, almost  enough  in  fact  to  pay  the  expenses 
of  the  State  government.  But  that  tax  col- 
lapsed with  the  anouncement  of  that  decision, 
and  no  attempt  has  been  made  to  collect  it 
since  .^ 


1  Another  question  which  has  been  the  subject  of  contention  was 
whether  the  legislature  of  a  State  could  so  relinqiiisli  the  right  to 
impose  taxes  on  property  within  its  jurisdiction  that  it  could  not 
be  revoked  by  a  future  one.  One  of  the  first  cases  in  which  this 
was  considered  was  State  of  Neio  Jersey  v.  Wilson,  7  Cranch,  104, 
holding  that  a  legislative  act  declaring  certain  lands  which  should 
be  purchased  for  the  Indians  should  not,  thereafter,  be  subject  to 
any  tax,  constituted  a  contract  which  could  not  be  rescinded  by  a 
subsequent  legislative  act.  Bradley,  J.,  in  Given  v.  Wright,  117 
U.  S.  648,  655,  says  that  the  Supreme  Court  does  not  feel  disposed 
to  question  that  decision,  although  it  was  held  that  by  acquiescence 


262  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  V.  for  a  long  period  the  right  to  the  privilege  might  be  lost.     But  this 

Tax  upon  travel-    construction  will  be  taken  strictly  against  the  grantee, 
'ers.  'I'he  power  of  taxation  is  an  attribute  of  sovereignty  and  is  essen- 

tial to  every  independent  government.  The  whole  cumumnity  is 
interested  in  retaining  it  undiminished,  and  has  a  right  to  insist 
that  its  abandonment  ought  not  to  be  presumed  in  a  case  hi  which 
the  deliberate  purjiose  of  the  State  to  abandon  it  does  not  appear. 
Delaware  Railroad  Tax,  18  Wall.  20(5.  An  illustration  of  this  rule 
is  found  in  Vicksburg  &c.  Railroad  Co.  v.  Dennis,  116  U.  S.  665, 
where  the  road  and  fixtures  of  the  company,  by  its  charter,  were 
exempt  from  taxation  for  ten  years  after  its  completion,  but  this 
was  held  not  to  exempt  the  road  and  fixtures  from  taxation  before 
its  completion. 

To  support  the  exemption,  there  must  be  an  adequate  considera- 
tion, otherwise  it  is  a  mere  spontaneous  concession  on  the  part  of 
the  legislature,  not  constituting  a  contract,  and  may  be  revoked 
at  will.  Rector  of  ChrisVs  Church  v.  County  of  Philadelphia,  2^ 
How.  300. 


NOTES   UPON   LECTURE   V. 


Under  the  head  of  the  power  of  taxation  Mr.  lkcturk  ¥. 
Justice  Miller  groups  two  distinct  subjects  in 
this  lecture:  (1)  The  powers  confided  by  the 
Constitution  to  the  United  States ;  and  (2)  the 
powers  which  that  instrument  withholds  from 
the  States.  He  has  also  alluded  to  (3)  cases  in 
which  the  courts  of  the  United  States  interfere 
to  compel  the  imposition  of  local  taxes  in  the 
States. 

The  cases  under  each  of  these  heads  are  nu- 
merous. For  many  years  scarcely  a  volume  of 
the  reports  has  been  issued  which  has  not  con- 
tained one  or  more  of  them.  Little  or  no  good 
could  come  from  an  extended  examination  of 
them ;  indeed  such  an  examination  would  be 
impracticable  within  the  limits  to  which  this 
note  is  necessarily  confined.  It  will  be  sufficient 
to  briefly  refer  to  a  few  of  the  leading  cases, 
some  of  which  Mr.  Justice  Miller  has  not  noticed. 

1.    The  Federal  Power  of  Taxation. 

In    an    early   case    the   question   was    raised  Federal  power  of 
whether  Congress  had  the  power  to  tax  the  Dis-  ^"^^^'^^ 
trict  of  Columbia ;    and  it   was  held   that  the 
power  to  levy  and  collect  taxes,  duties,  imposts, 
and  excises  was  coextensive  with  the  territory 

263 


264  LECTUKES    ON   CONSTITUTIONAL   LAW. 

lectuue  v.  of  the  United  States.^  But,  if  a  public  enemy 
falttioli^'"'^^"^  °^  conquers  and  occupies  a  portion  of  the  United 
States,  the  portion  so  occupied  becomes  foreign 
territory,  so  far  as  revenue  laws  are  concerned  ; 
and  the  subsequent  restoration  of  the  authority 
of  the  United  States  over  it  does  not  change 
the  character  of  past  transactions.^  On  the  other 
hand,  the  conquest  and  military  occupation  of 
foreign  territory  by  the  United  States  leaves  it 
foreign  country  for  revenue  purposes.^ 

The  exercise  by  Congress  during  the  civil 
war  of  its  power  to  impose  direct  taxes  upon 
real  estate  within  the  States  did  not  create  a  lia- 
bility, upon  the  part  of  the  States  in  which  the 
land  was  situated,  to  pay  the  tax.^  The  power 
to  tax  was  exercised  upon  the  property  of  pri- 
vate individuals  within  the  State.  In  the  great 
taxation  during  and  immediately  after  the  civil 
war,  questions  were  sometimes  raised  whether  a 
particular  tax  was  a  direct  tax  or  an  impost  or 
excise.  A  succession  tax  was  held  to  be  the  latter.^ 
The  provision  that  duties,  imposts,  and  ex- 
cises shall  be  uniform  throughout  the  United 
States  is  complied  with  if  the  tax  operates  with 
the  same  effect  in  all  places  where  the  subject 
of  it  is  found.  There  is  no  want  *of  uniformity 
simply  because  the  thing  taxed  is  not  equally 
distributed  in  all  parts  of  the  United  States.® 

1  Longhhorotigh  v.  Blake,  5  Wheat.  317. 

2  United  States  v.  Rice,  4  Wheat.  246. 

3  Fleming  v.  Page,  0  How.  603. 

*  United  States  v.  Louisiana,  123  U.  S.  32. 

6  Seholey  v.  Bexu,  23  Wall.  331. 

6  Head  Money  Cases,  112  U.  S.  580. 


NOTES    UroX    LECTURE    V.  2G5 

There  are  some  things  which  are  not  proper  lecture  v. 
siibiects    of  Federal    taxation,  as,  for  instance,  ^®^'^''.^' p*^"'^'' "^ 

•^  ...  taxation. 

the  revenues  of  a  municipal  corporation.^ 

2.    Restraints  iqoon  State  Taxation. 

The  State  can  authorize  the  taking  of  indi-  Restraints  upon 
vidual  property  by  taxation  only  for  public  uses  faxation^^"^  ^^ 
and  purposes.     Hence  it  cannot  confer  upon  its 
municipal  corporations  power  to  create  debts  to 
be  paid  by  taxation,  when  the  money  is  to  be 
used  for  private  objects.^ 

It  cannot  part  with  its  general  power  to  tax, 
because  that  power  is  essential  to  the  exercise 
of  its  sovereignty  and  the  performance  of  its 
duties.  But  it  can  by  contract  part  with  a  por- 
tion of  this  sovereign  power  for  a  consideration 
which  it  accepts  as  sufficient.  When,  in  incor- 
porating a  private  corporation,  the  State  exempts 
the  property  of  the  corporation  from  taxation, 
or  limits  the  amount  of  taxation  to  be  imposed 
upon  it,  subsequent  legislation,  imposing  a  higher 
rate  of  taxation  than  the  charter  permits,  is  in- 
valid.^ But  such  legislation  is  looked  upon  with 
jealousy,  and  construed  strictly  by  the  courts. 
The  immunity  will  not  be  recognized,  unless 
granted  in  terms  too  plain  to  be  mistaken.'*  It 
is  a  privilege  belonging  only  to  the  corporation 
named,  and  will  not  pass  to  its  successor,  unless 

1  United  States  v.  Bailrond  Company,  17  Wall.  322. 

2  Cole  V.  La  Grange,  113  U.  S.  1,  and  cases  cited  in  the  opinion. 
8  Neio  Orleans  v.  Houston,  119  U.  S.  205. 

*  Chicago  &  Burlington  Railroad  v.  Guffey,  120  U.  S.  569; 
8.  C.  122  U.  S.  561. 


206 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lkctuhk  V. 
Restraints  upon 
Stute  power  of 
taxation. 


the  intent  of  the  statute  thereto  is  clear  and 
express.^ 

The  power  of  making  such  a  contract  is  con- 
fined to  private  corporations.  The  power  of 
taxation  on  the  part  of  a  municipal  corporation 
is  not  private  property,  or  a  vested  right  of  prop- 
erty in  its  hands.  The  conferring  of  such  power 
is  an  exercise  by  tlie  Legislature  of  a  public  and 
governmental  power,  which  cannot  be  imparted 
in  perpetuity,  and  is  always  subject  to  revoca- 
tion, modification,  and  control,  and  is  not  the 
subject  of  contract.^ 

Real  estate  and  personal  property  of  the 
United  States  situated  within  the  limits  of  a 
State ;  ^  evidences  of  debt  issued  by  the  United 
States  held  by  a  citizen  of  a  State  ;  *  franchises 
conferred  by  Congress  upon  a  corporation  created 
by  it,  to  be  exercised  within  a  State  ;  ^  and  agen- 
cies employed  by  the  United  States  in  carrying 
into  effect  the  powers  vested  in  it  by  the  Con- 
stitution,® cannot  be  subjected  to  taxation  by  the 
States,  without  the  consent  of  Congress.  The 
State    taxation  of  national  banks,  too,   is  con- 


1  Morgan  v.  Louisiana,  93  U.  S.  217  ;  Wilson  v.  Gaines,  103 
U.  S.  417  ;  Louisville.  &  Nashville  Railroad  v.  Palmes,  109  U.  S. 
244  ;  Memphis  &  Little  Rock  Railroad  v.  Railroad  Commissioners, 
112  U.  S.  (309 ;  Pickard  v.  East  Tennessee,  Virginia  &  Georgia 
Railroad,  130  U.  S.  637  ;  Yazoo  &  AJiss.  Valley  Railroad  v. 
lliomas,  132  U.  S.  174. 

2  Williamson  v.  New  Jersey,  130  U.  S.  189. 

'  Van  Brocklin  v.  Tennessee,  117  U.  S.  151  ;  Wisconsin  Central 
Railroad  v.  Price,  133  U.  S.  496. 

*  Weston  V.  Charleston,  2  Pet.  449 ;  Bank  v.  Supervisors^  7 
Wall.  2(i. 

^  California  v.  Central  Pacific  Railroad  Co.,  127  U.  S.  1, 

6  Osborn  v.  Bank  of  the  United  States,  9  Wheat.  738. 


NOTES    UPON    LECTURE    V.  267 

trolled  and  regulated  by  Congress.^     So,  too,  a  LErxuRE  v. 
State  income  tax  cannot  be  imposed  upon  the  ^•'*^''*'°^ "?«« 

■^  ^  btate  power  of 

salary  of  an  officer  of  the  United  States."  taxation. 

The  legislation  of  the  State  of  Virginia,  first 
making  its  consolidated  bonds  receivable  in  pay- 
ment of  taxes,  and  then  repudiating  that  con- 
tract, has  been  the  subject  of  much  litigation. 
The  cases  were  reviewed  at  length  at  October 
Term,  1889,  and  it  was  held  that  the  statute 
constituted  a  contract  between  the  State  and  the 
holders  of  bonds  and  coupons  issued  under  it, 
which  was  materially  impaired  by  the  subse- 
quent legislation ;  and  that  although  no  pro- 
ceedings could  be  instituted  by  holders  against 
the  Commonwealth  or  its  executive  officers  to 
control  them  in  the  exercise  of  their  official 
functions,  yet  that,  on  the  other  hand,  proceed- 
ings could  not  be  taken  on  behalf  of  the  State 
to  molest  holders  on  account  of  such  taxes  when 
payment  of  them  had  been  tendered  in  such 
coupons,  and  the  taxpayer  held  himself  continu- 
ally ready  to  pay  them  in  such  coupons.^ 


1  There  are  many  cases  on  this  point.  It  is  sutScient  to  refer 
to  Mercantile  Bank  v.  New  York,  121  U.  S.  138,  where  the  subject 
is  discus.sed. 

2  Dobbins  v.  Erie  County,  16  Pet.  435. 

8  McGahey  v.  Virr/inia,  135  U.  S.  662.  "  This  case,  with  seven 
others,  reported  under  tliis  title,  grew  out  of  tlie  legislation  of  the 
State  regarding  coupons  of  the  same  character  as  those  involved  in 
the  Virginia  coupon  cases.  Mr.  Justice  Bradley,  delivering  the 
unanimous  opinion  of  the  court,  after  a  full  and  exhaustive  review 
and  analysis  of  the  decisions  in  those  cases  and  others  like  them, 
presented  a  summary  of  the  propositions  established  by  those 
decisions,  which  cannot  be  well  abridged,  as  follows  : 

"'First,  That  the  provisions  of  the  act  of  1871  constitute  a 
contract  between  the  State  of  Virginia  and  the  lawful  holders  of 


268 


LECTUKES    ON    CONSTITUTIONAL    LAW. 


Lecture  V. 
Restraints  upon 
State  power  of 
taxation. 


By  far  the  larger  class  of  cases  touching  the 
constitutional  restriction  of  the  power  of  taxa- 
tion in  the  States  relates  to  its  interference  with 
the  powers  in  respect  of  commerce  which  the 
Constitution  has  reposed  in  the  Federal  Gov- 
ernment. This  subject,  which  we  shall  find  con- 
sidered more  at  length  when  Ave  reach  the  Lec- 
ture upon  the  Regulation  of  Commerce,  has  been, 
also  touched  upon  by  Judge  Miller  in  this  lec- 
ture. It  is  necessary  to  add  to  what  he  has  said 
only  a  reference  to  a  few  of  the  later  cases. 

The  doctrine  of  Broivn  v.  Maryland,^  that  a 


the  bonds  and  coupons  issued  under  and  in  pursuance  of  said 
statute ; 

"  '  Second,  That  the  various  acts  of  the  General  Assembly  of 
Virginia  passed  for  the  purpose  of  restraining  the  use  of  said 
coupons  for  the  payment  of  taxes  and  other  dues  to  the  State,  and 
imposing  impediments  and  instructions  to  that  use,  and  to  the  pro- 
ceedings instituted  for  establishing  their  genuineness,  do  in  many 
respects  impair  the  obligation  of  that  contract,  and  cannot  be  held 
to  be  valid  or  binding  in  so  far  as  they  have  that  effect ; 

"  'Third,  That  no  proceedings  can  be  instituted  by  any  holder 
of  said  bonds  or  coupons  against  the  Commonwealth  of  Virginia, 
either  directly  by  suit  against  the  Commonwealth  by  name,  or  in- 
directly against  her  executive  officers  to  control  them  in  the  exercise 
of  their  official  functions  as  agents  of  the  State  ; 

"  '  Fourth,  That  any  lawful  holder  of  the  tax-receivable  coupons 
of  the  State,  issued  under  the  act  of  1871  or  the  subsequent  act  of 
.  1879,  who  tenders  such  coupons  in  payment  of  taxes,  debts,  dues 
and  demands  due  from  him  to  the  State,  and  continues  to  hold 
himself  ready  to  tender  the  same  in  payment  thereof,  is  entitled  to 
be  free  from  molestation  in  person  or  goods  on  account  of  such 
taxes,  debts,  dues  or  demands,  and  may  vindicate  such  right  in  all 
lawful  modes  of  redress,  — by  suit  to  recover  his  property,  by  suit 
against  the  officer  to  recover  damages  for  taking  it,  by  injunction 
to  prevent  such  taking  where  it  would  be  attended  with  irremedi- 
able injury,  or  by  a  defence  to  a  suit  brought  against  him  for  his 
taxes  or  the  other  claims  standing  against  him.'  "  Mr.  Justice 
Lamar,  in  Pennoyer  v.  McConnaughhy,  140  U.  S.  1. 

1  12  Wheat.  419. 


NOTES    UPON    LECTURE    V.  2G9 

State  statute,  requiring  all  importers  and  dealers  lepturk  v. 
in  imported  goods  to  take  out  a  license  and  pay  s^^l^tT'o^ver^f" 
a  license  fee  therefor,  is  repugnant  to  the  Con-  taxation, 
stitution,  and    for   that   reason   void,  has  been 
steadily  followed   since,   and   has  been   applied 
to  commerce  "among  the  several  States,"  com- 
monly known  as  mterstate    commerce.     Below 
will  be  found  references  to  a  few  of  the  many 
cases.^ 

In  Philadelphia  &  Southern  Steamship  Co.  v. 
Pennsylvania,  122  U.  S.  326,  it  was  held  that 
a  State  tax  could  not  be  constitutionally  imjDosed 
upon  the  gross  receipts  of  a  steamship  company, 
incorporated  under  its  laws,  which  were  derived 
from  the  transportation  of  persons  and  property 
by  sea,  between  different  States,  and  to  and  from 
foreign  countries.  In  State  Freight  Tax  Case,  15 
Wall.  232,  it  was  held  that  interstate  commerce 
cannot  be  taxed  at  all,  even  though  the  same 
amount  of  tax  should  be  laid  on  domestic  com- 
merce, or  that  which  is  carried  on  solely  within 
the  State.  In  Welton  v.  Missouri,  91  U.  S.  275, 
it  was  held  that  a  statute  of  Missouri  which  re- 
quired the  payment  of  a  license  tax  by  peddlers, 


1  Henderson  v.  Xew  York,  92  U.  S.  259  ;  People  v.  Compagnie 
Generale  TrnnsatlantUpte,  107  U.  S.  59  ;  Welton  v.  Misso7iri,  91 
U.  S.  275  ;  77te  Faxsenger  Cases,  7  How.  283  ;  State  Freight  Tax, 
15  Wall.  2-32  ;  Walling  v.  Michigan,  116  U.  S.  44G  ;  Philadelphia 
&  Southern  Steamship  Co.  v.  Pennsylvania,  122  U.  S.  326 ;  Fen- 
sacola  Telegraph  Co.y.  Western  Union  Telegraph  Co.,  96  U.  S.  1 ; 
Eatternian  v.  Western  Union  Telegraph  Co.,  127  U.  S.  411 ;  West- 
ern Union  Telegraph  Co.  v.  Alabama,  132  U.  S.  472  ;  Asher  v. 
Texas,  128  U.  S.  129  ;  Pobbins  v.  Shelby  County  Taxing  District, 
120  U.  S.  489  ;  Leloup  v.  Port  of  Mobile,  127  U.  S.  640 ;  Corson 
V.  Maryland,  120  U.  S.  502. 


270 


LECTUliES    ON    CONSTITUTIONAL    LAW. 


Lkcture  V. 
Kcstrairits  upon 
State  power  of 
taxation. 


peddling  goods  within  the  State,  which  were  not 
its  growth,  produce,  or  manufacture,  and  which 
required  no  such  payment  and  license  from  a 
person  peddling  within  the  State  similar  goods, 
the  growth,  produce,  or  manufacture  of  Missouri, 
was  repugnant  to  the  Constitution ;  and  also 
that  the  non-exercise  by  Congress  of  its  power 
to  regulate  commerce  among  the  States  was 
equivalent  to  a  declaration  that  it  should  be 
free  from  restrictions.  In  Asher  v.  Texas,  128 
U.  S.  129,  it  was  held  that  a  State  law  exact- 
ing a  license  tax  to  enable  a  person  within  the 
State  to  solicit  orders  and  make  sales  there  for 
a  person  residing  within  another  State  was  void ; 
affirming  Rohhins  v.  Shelby  County  Taxing  Dis- 
trict, 120  U.  S.  489.  And  in  Fensacola  Tele- 
graph Co.  V.  Western  Union  Telegraph  Co.,  96 
U.  S.  1,  affirmed  and  followed  in  several  subse- 
quent cases,  it  was  held  that  a  tax  cannot  be 
imposed  by  a  State  upon  a  telegraph  company 
which  has  accepted  the  provisions  prescribed  by 
Congress  (Rev.  Stat.  tit.  LXV),  based  upon  re- 
ceipts derived  from  messages  received  or  sent 
without  the  State. 

In  a  recent  case  a  New  York  statute  essen- 
tially modifying,  in  the  taxpayer's  favor,  previous 
laws  of  limitation  concerning  lands  sold  for  non- 
payment of  taxes,  was  attacked  as  unconstitu- 
tional. The  new  statute  enacted  that  no  action 
should  thereafter  be  maintained  to  compel  the 
execution  or  delivery  of  a  lease  upon  a  sale  for 
taxes,  etc.,  made  more  than  eight  years  prior  to 
its  date,  unless  commenced  within  six  months 


NOTES    UPON    LECTURE    V.  271 

after  that  date,  and  that,  on  the  expiration  of  lectukk  v. 
that  .six  months,  the  lien  of  certificates  of  pur-  Kes^^^"'^  "17 

'  i  State  power  of 

chase  on  which  no  lease  had  been  taken  or  no  taxation, 
action  commenced  should  cease  and  determine. 
It  was  held  by  the  Supreme  Court  that  there 
was  nothing  in  the  Constitution  of  the  United 
States  which  prevented  the  Legislature  of  New 
York  from  prescribing  a  limitation  for  the  bring- 
ing of  suits  where  none  had  previously  existed, 
or  from  shortening  the  time  within  which  suits 
should  be  commenced  to  enforce  existin<>:  rii]i;lits 
under  the  tax  sales,  provided  the  time  prescribed 
by  the  new  law  was  a  reasonable  one.* 

3.    Power   in  Federal   Courts  to   compel   Muni- 
cipal Taxation  in  a  State. 

On  pages   243-246,  ante,  Mr.  Justice  Miller  when  Federal 
has  referred  to  the  many  issues  of  the  bonds  of  pei"murlidpar™* 
municipal  corporations  in  aid  of  the   construe-  taxation, 
tion  of  railroads  and  other  private  enterprises, 
which  have  been  a  fertile  source  of  litigation 
during  the  past  twenty  years. 

Although  this  class  of  cases,  as  a  whole,  in 
one  aspect  belongs  to  the  subject  treated  of  in 
Lecture  XI,  on  the  impairment  of  the  obliga- 
tion of  contracts,  in  another  and  narrower  rela- 
tion they  should  be  classified  here. 

It  is  now  well  settled  that  the  implied  power 
of  a  municipal  corporation  to  borrow  money  to 
enable  it  to  execute  the  powers  expressly  con- 
ferred  upon  it  by  law,  if  it  exist  at  all,  does 

1  Wheeler  v.  Jackson,  137  U.  S.  245. 


272  "  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  V.        not  authorize  it  to  create  and  issue  negotiable 
When  Federal      securities,  to  be  sold  in  the  market,  and  to  be 

Courts  may  com-  ' 

pel  municipal       taken  bytlic  purchaser  freed  from  equities  which 
taxation.  might  be  set  up  by  the  maker.^     Also  that  a 

grant  to  a  municipal  corporation  of  power  to 
appropriate  money  in  aid  of  the  construction  of 
a  railroad,  accompanied  by  a  provision  directing 
the  levy  and  collection  of  taxes  to  meet  such 
appropriation,  and  prescribing  no  other  mode  of 
payment,  does  not  authorize  the  issuing  of  nego- 
tiable bonds  in  payment  of  such  appropriation.^ 
With  this  class  of  cases,  many  in  number, 
confining  the  power  of  municipal  corporations  in 
respect  to  the  issue  of  negotiable  securities  to 
the  powers  expressly  conferred  upon  it  by  statute, 
we  have  nothing  to  do  in  this  connection. 

There  are,  however,  a  class  of  cases,  in  which 
such  a  power  was  exercised  by  the  municipality 
in  payment  of  subscriptions  to  aid  in  the  con- 
struction of  railroads,  either  under  an  unequivocal 
grant  from  the  State  legislature,  or  under  a  statute 
of  the  State  which,  as  interpreted  by  its  highest 
court,  contained  such  a  grant.  Bonds  issued  under 
such  circumstances  were  widely  scattered ;  and 
when  default  was  made  in  their  pa}Tnent,  suits 
were  commenced  which  finally  found  their  way 
to  the  Supreme  Court.  When  they  reached  that 
stage,  it  had  been  developed  in  some  of  them  that 
the  highest  court  of  the  State  had  reversed  its 
ruling  in  regard  to  the  power  of  the  municipality 
to  issue  such  bonds,  and  that  bonds,  valid  under 

1  Merrill  v.  Monticello,  138  U.  S.  673,  and  cases  there  cited. 

2  Concord  v.  liobinson,  121  U.  S.  671. 


NOTES    UPON   LECTURE    V.  2i-] 

its  rulings  when  issued,  would  be  held  invalid,  if  lkcturk  v. 
the  new  rulin*^  of  the  same  court  should  be  fol- \^'h«"  i-'-'^"-''! 

>^  Courts  may  com- 

lowed.     It  also  appeared  that  powers  of  munic-  pel  municipal 
ipal  taxation  which  existed  at  the  time  of  the 
orighial  issue  of  such   bonds,  liad  l)een  modified 
or  changed  by  State  legislation  to  the  injury  of 
the  holders  of  such  bonds. 

With  reo-ard  to  the  cliano:e  of  rulin^i;  in  the 
State  court,  the  Supreme  Court,  by  Chief  Justice 
Waite,  said  :  — 

"  Until  long  after  the  issue  of  the  bonds  now 
in  question,  the  law  was  treated  by  the  courts 
and  the  people  as  valid  and  constitutional.  No 
lawyer,  asked  for  a  professional  opinion  on  that 
subject,  could  have  hesitated  to  say  that  it  had 
been  settled.  It  would  seem  as  though  every 
question,  which  could  be  raised,  had  in  some 
form,  directly  or  indirectly,  been  presented  and 
decided.  .  .  .  We  are,  then,  to  consider  whether, 
under  these  circumstances,  we  must  follow  the 
later  decisions  to  the  extent  of  destroying  rights 
which  have  become  vested  under  those  given 
before.  As  a  rule,  we  treat  the  construction 
which  the  highest  court  of  a  State  has  given  to 
a  statute  of  the  State,  as  part  of  the  statute,  and 
govern  ourselves  accordingly ;  but  where  different 
constructions  have  been  given  to  the  same  stat- 
ute at  different  times,  we  have  never  felt  our- 
selves bound  to  follow  the  later  decisions,  if 
thereby,  contract  rights,  which  have  accrued 
under  earlier  rulings,  will  be  injuriousl}^  affected. 
...  So  far  as  this  case  is  concerned,  we  have 
no  hesitation  in  saying  that  the  rights  of  the 


274 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  V. 
When  Federal 
Courts  may  com- 
pel municipal 
taxation. 


parties  are  to  be  determined  according  to  tlie 
law,  as  it  was  judicially  construed  to  be  when 
the  bonds  in  question  were  put  on  the  market  as 
commercial  paper."  ^ 

In  regard  to  the  legislation  modifying  the 
taxing  power,  it  is  held  that,  "  when  a  contract 
is  made  with  a  municipal  corporation,  upon  the 
faith  that  taxes  will  be  levied,  legislation  repeal- 
ing or  modifying  the  taxing  power  of  the  cor- 
poration, so  as  to  deprive  the  holder  of  the 
contract  of  all  adequate  and  efficacious  remedy, 
is  within  the  inhibition  of  the  Constitution : " 
and  that  "  a  judgment  creditor  of  a  municipal 
corporation,  entitled  by  his  original  contract  to 
be  paid  out  of  specific  tax  levies,  which  agree- 
ment the  corporation  fails  to  comply  with,  is 
entitled,  in  mandamus  proceeding,  to  a  writ 
ordering  the  levy  and  collection  of  a  sufficient 
tax  to  pay  his  judgment  according  to  the  assess- 
ment roll  of  the  year  in  which  the  levy  was 
made."^ 


1  Douglass  v.  County  of  Pike,  101  U.  S.  677,  685,  686,  687  ; 
Scotland  County  v.  Hill,  132  U.  S.  107,  112.  See  also  Burgess  v. 
Seligman,  107  U.  S.  20,  33,  34,  where  the  subject  is  fully  con- 
sidered. 

2  Nelson  v.  St.  Martin's  Parish,  111  U.  S.  717.  See  also 
United  States  v.  Clark  County,  90  U.  S.  211  ;  Knox  County  Coui-t  v. 
United  States,  109  U.  S.  229  ;  Macon  County  v.  Huidekoper,  134 
U.  S.  332.  In  all  these  cases  a  writ  of  mandamus  was  granted. 
See  also  United  States  v.  Macon,  99  U.  S.  582,  where  one  was  re- 
fused. 


VI. 

NATURALIZATION   AND   CITIZENSHIP.^ 

Article  I,  Section  8,  Paragraph  4.     The  Con-  Lecture  VI. 

gress  shall  have  Power  ...  to  establish  an  uniform  Naturalization 
rule   of    Naturalization  .   .   .  throughout    the   United  and  citizenship. 
States. 

Article  IV,  Section  2.  The  Citizens  of  each 
State  shall  be  entitled  to  all  Privileges  and  Immunities 
of  Citizens  in  the  several  States. 

Article  XIV  of  the  Amendments,  Section  I. 
All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of 
the  United  States  and  of  the  State  wherein  they 
reside.  No  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens 
of  the  United  States.  .  .  . 

Last  evening  we  took  up  the  first  clause  of 
section  8  of  Article  I  of  the  Constitution  of  the 
United  States,  which  has  reference  to  taxation. 
This  evening  I  will  call  your  attention  to  the 
fourth  clause,  which  is  as  follows  :  "  To  establish 
a  uniform  rule  of  naturalization,  and  uniform 
laws  on  the  subject  of  bankruptcies,  throughout 
the  United  States." 

Naturalization  is  the  process  by  which  a  citi-  Definition  of 
zen,  or  subject  of  a  foreign  nation  or  kingdom,  naturalization, 
is  made  a  citizen  of  the  United  States. 

1  This  is  lecture  V  of  the  Lectures  delivered  before  the  classes 
of  the  University  Law  School. 

275 


276 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  VI. 
Deflnitiou  of 
naturalization. 


Citizenship  of  the 
United  States. 


It  is  evident  that  the  Constitutional  Con- 
vention thought  that  it  was  important  that  this 
process  should  be  placed  under  the  exclusive 
control  of  the  Federal  Government  and  not  of 
the  States.  There  are  certain  rights,  privileges, 
and  duties  belonging  to  a  citizen  of  a  State, 
which  do  not  belong  to  a  foreigner  resident 
within  the  State.  Among  these  it  is  said  that 
allegiance  and  protection  are  correlative  obliga- 
tions. If  you  are  a  citizen  or  subject  of  a  coun- 
try (and  I  employ  the  words  "  citizen "  and 
"subject"  as  they  are  distinctively  used  in  mon- 
archical countries,  the  former  being  more  com- 
monly used  to  designate  the  relation  where  free 
or  republican  institutions  exist,  and  the  latter 
where  a  monarchy  is  established),  then,  in  either 
instance,  there  are  the  correlative  obligations 
between  yourself  on  the  one  side,  and  the  gov- 
ernment or  the  monarch  on  the  other.  The 
citizen  or  subject  owes  allegiance,  which  signifies 
the  loyal  devotion  and  support  due  from  him  to 
the  government  under  which  he  lives  ;  and,  in 
return,  that  government  owes  him  protection 
in  a  great  many  ways,  too  numerous  for  me  to 
undertake  to  detail  at  this  time.  Naturalization, 
then,  is  the  process  of  conferring  on,  or  impart^ 
ing  to,  a  foreigner,  who  does  not  yet  owe  that 
allegiance,  and  who  has  no  right  to  that  protec- 
tion, the  right  to  protection,  and  the  obligations 
of  allegiance. 

Before  you  can  understand  what  a  man  gets 
by  being  naturalized  in  this  country,  you  must 
have  an  idea  of  what  it  is  to  be  a  citizen.     Citi- 


NATURALIZATION    AND    CITIZENSHIP.  277 

zensliip  in  the  United  States  was  for  man}^  years  lecturk  vi. 
a  tiling  of  very  imperfect  definition.     The  term  ^.iii^enshi,,  of  the 

o  .  .  L  uited  States. 

occurs  several  times  in  the  Constitution,  in  which 
citizens  of  the  different  States,  as  well  as  of  tlie 
United  States,  are  spoken  of.  It  long  remained 
a  matter  of  considerable  doubt  what  constituted 
citizenship  of  the  United  States.  It  was  main- 
tained by  many  statesmen,  up  to  the  tinie  of  the 
adoption  of  the  Fourteenth  Amendment,  that 
there  was  no  such  distinctive  character  as  "  a 
citizen  of  the  United  States;"  that,  on  the  con- 
trary, the  designation  of  "  a  citizen  of  a  State  '* 
had  been  long  known  and  understood,  and  as 
such,  and  by  virtue  of  that  fact,  the  person  was 
a  citizen  of  the  United  States.  But  that,  you 
will  at  once  see,  left  out  all  the  good  people 
who  lived  in  the  District  of  Columbia,  for  they 
were  not  citizens  of  any  State ;  and  it  also  left 
out  all  the  residents  of  the  Territories,  for  they 
were  citizens  of  no  State.  It  was  also  asserted 
that  it  left  out,  and  probably  it  did,  all  the  In- 
dians in  this  country,  whether  connected  with 
some  tribe  or  not ;  and  the  statesmen  who  lived 
in  the  slave-holding  States  vehemently  main- 
tained that  it  left  out  as  well  all  the  slaves. 
Possibly  it  was  true  ;  I  am  not  prepared  to  say ; 
but  they  also  insisted  that  it  left  out  all  the  free 
colored  population. 

In  various  wsljs  it  became  a  matter  of  consid- 
erable consequence  whether  that  view  was  to  be 
generally  accepted.  For  instance,  if  a  citizen  of 
the  District  of  Columbia,  or  a  negro,  while  trav- 
elling abroad,  was  arrested  by  a  foreign  govern- 


278  LECTURES    ON    CONSTITUTIONAL    LAW. 

lecturic  VI.  ment,  and  appealed  to  this  Government  for 
United  states  ^^^  protection  as  a  citizen  of  the  United  States,  the 
foreign  power  could  reply  that  he  was  not  such 
a  citizen,  and  could  not  assert  the  same  rights 
as  if  he  were  a  white  man,  a  citizen  of  a  State, 
and  therefore  a  citizen  of  the  United  States. 
Among  the  good  as  well  as  evil  things  that  the 
late  rebellion  has  brought  about,  is  a  constitu- 
tional definition  of  this  word  "•citizen."  It  is 
impossible  to  get  a  clear  idea  of  what  naturali- 
zation means  without  knowing  what  citizenship 
is ;  and  I  will  therefore  turn  your  attention  to 
the  Fourteenth  Amendment  to  the  Constitution 
of  the  United  States,  where  that  term  is  now 
clearly  defined,  and  its  meaning  placed  beyond 
all  question.  This  it  was  intended  to  do,  as 
well  as  to  put  at  rest  the  question  of  the  civil 
status  of  the  negro. 
The  Fourteenth  Tliis  amendment  is  divided  into  several  sec- 
en  men  .        tious,  tliG  first  of  wliicli  relates  to  this  subject. 

"  Sec.  1.  All  persons  born  or  naturalized  in 
the  United  States,  and  subject  to  the  jurisdiction 
thereof,  are  citizens  of  the  United  States  and  of 
the  State  wherein  they  reside.  No  State  shall 
make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United 
States ;  nor  shall  any  State  deprive  any  person 
of  life,  liberty,  or  property,  without  due  process 
of  law  ;  nor  deny  to  any  person  within  its  juris- 
diction the  equal  protection  of  the  laws." 

Looking  at  that  section  critically,  you  will  see 
that  citizenship  of  the  United  States  and  citizen- 
ship of  a  State  are  distinctly  spoken  of  as  sepa- 


NATURALIZATION    AND    CITIZENSHIP.  279 

rate  things,  although  the  mode  of  ascertaining  lecture  vi. 
who  is  a  citizen  of  the  United  States  is  to  some  'V''^  i*"«"'teenth 

Amenament. 

extent  through  citizenship  of  a  JState.  It  is  not 
necessary,  however,  that  a  man  should  be  a  cit- 
izen of  a  State  in  order  to  be  a  citizen  of  the 
United  States.  If  he  is  born  or  naturalized  in 
the  United  States,  and  subject  to  its  jurisdiction, 
he  is  a  citizen  of  the .  United  States,  and  being 
such  a  citizen  he  is,  by  virtue  of  the  clause  above 
quoted,  necessarily  a  citizen  of  the  State  in  which 
he  resides.  There  is,  therefore,  no  difficulty  now 
in  determining  what  is  citizenship  of  the  United 
States. 

In  regard  to  the  use  of  the  word  "  jurisdic- 
tion" in  the  phrase,  "All  persons  born  or  nat- 
uralized in  the  United  States,  and  subject  to  the 
jurisdiction  thereof,"  it  may  be  remarked,  that  a 
child  of  a  foreign  ambassador,  born  within  the 
limits  of  the  United  States,  is  not  subject  to  its 
jurisdiction  within  the  meaning  of  the  language 
just  quoted.  He  remains  a  foreigner  and  a 
subject  of  the  kingdom  or  country  which  is  rep- 
resented by  his  father,  and  the  same  is  true  of 
all  other  diplomatic  representatives.  If  a  stran- 
ger or  traveller  passing  through,  or  temporarily 
residing  in  this  country,  who  has  not  himself 
been  naturalized,  and  who  claims  to  owe  no  alle- 
giance to  our  Government,  has  a  child  born  here 
which  goes  out  of  the  country  Avitli  its  father, 
such  child  is  not  a  citizen  of  the  United  States, 
because  it  was  not  subject  to  its  jurisdiction. 

This  Amendment,  of  course,  includes  all  the 
black  people.     They    are   born    in    the    United 


280  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkcturk  VI.       States  and  subject  to  its  jurisdiction  ;  they  are, 
ihe  Fourteenth    ^-hereforc,  all  citizens.    Indeed,  the  main  puriwse 

Ara<!udiiient.  ^  .  . 

of  this  Amendment  to  the  Constitution  was  to 
make  the  fact  pkiin  that  the  bhick  popukition 
within  our  borders  were  citizens  of  this  country. 
The  Indian  tribes  were  not,  however,  inchided ; 
and  it  has  been  decided  by  tlie  Supreme  Court 
of  the  United  States  that  an  Indian  did  not  be- 
come a  citizen  without  naturalization,  by  virtue 
of  this  clause  of  the  Fourteenth  Amendment.^ 
Citizenship  is  ex-  It  would  secm  aluiost  usclcss  to  say  that  the 
dusive  of  sex  or    ^yQj-^j  u  citizen  "  docs  uot  pertain  alone  to  adult 

age.  •  ^ 

males,  but  I  have  found  so  many  persons  who 
thought  that  citizenship  and  the  right  to  vote 
were  in  some  way  connected  and  identical,  that 
«  I  have  thought  it  proper  to  remind  you  that 

citizenship  has  no  relation  to  age  or  sex.  A 
child  the  moment  it  enters  the  world  is  a  citi- 
zen, and  a  woman  is  a  citizen.  Consequently 
they  have  rights,  although  the  privilege  of  vot- 
ing may  not  be  one  of  them,  which  are  pertinent 
to  and  grow  out  of  the  fact  of  this  citizenship  of 
the  United  States.  The  object,  then,  of  natural- 
ization, in  regard  to  which  the  Constitution  says 
that  Congress  shall  have  power  to  establish  a 
uniform  rule,  is  to  confer  upon  those  persons 
who  do  not  have  it  this  right  of  citizenship. 
Naturalized  citi-  The  proccss  1)y  wliicli  a  person  becomes  nat- 
uralized will  be  found  prescribed  in  sections 
2165  to  2174  of  the  Revised  Statutes  of  the 
United   States.     I   will  not  read  them  to  you 

1  Elk  V.  Wilkins,  112  U.S.  94. 


zens. 


NATURALIZATION    AND    CITlZENSIIir.  281 

here,  liiit  will  only  state  the  general  purport  of  lecture  vi. 
the  statute  on  that  subject.     In  the  first  place,  Naturalized  dti- 
it  is  provided  that  a  person  must  have  lived  in 
the  United  States  live  years  before  he  can  be-  . 

come  a  citizen.  I  am  speaking  now  of  persons 
who  arrive  here  at  adult  age  ;  there  are  other 
provisions  for  those  who  come  here  as  minors, 
whose  naturalization  is  to  some  extent  governed 
by  that  of  the  father.  At  any  time  after  a 
person  enters  this  country  he  can  go  before  a 
court  of  competent  jurisdiction,  and  make  a  dec- 
laration that  he  intends  or  desires  to  become  a 
citizen  of  the  United  States.  That  declaration 
becomes  a  matter  of  record  in  the  court  where 
it  is  made,  and  the  applicant  is  thereupon  fur- 
nished with  a  copy  of  this  record  containing  his 
name,  description,  and  declaration. 

The  courts  which  have  been  given  by  acts  of 
Congress  jurisdiction  over  this  subject  are  not 
alone  those  of  the  United  States ;  but  all  the 
courts  of  the  States  and  of  the  United  States, 
which  are  courts  of  record,  have  the  power  to 
conduct  these  proceedings  for  the  naturalization 
of  aliens.  After  five  years'  residence  within  the 
United  States  the  party  can  go  to  the  same  court, 
or  to  another  court  having  this  jurisdiction,  pro- 
duce his  certificate  declaring  his  intention  to 
become  a  citizen,  and  take  an  oath  to  perform 
the  duties  of  a  citizen  of  the  United  States,  that 
he  is  well  affected  towards  its  Government,  and 
that  he  renounces  all  allegiance  to  any  foreign 
country,  kingdom,  or  potentate.  He  then  proves, 
or  tries  to  prove,  in  the  best  way  he  can,  by 


282  LECTURES    ON    CONSTITUTIONAL    LAW. 

lectuke  VI.       competent  witnesses,  his    five  years'  residence, 

Naturalized  citi-  i^iii*  r  i  ii  i_ 

jjeng  and  that  he  is  a  man  oi   good  moral  character. 

If  he  establishes  these  facts  to  the  satisfaction 
•  of  the   court,  it  makes  an  order  that   he  is  a 

citizen,  which  is  recorded,  and  also  gives  him  a 
certificate  which  is  always  evidence  of  his  citi- 
zenship. If  it  is  lost  he  can  at  any  time  obtain 
a  copy  of  it  from  the  com:'t  where  the  original 
proceedings  were  had. 

What  is  gained  by      Why  sliould  a  man  become  naturalized  ?  What 

naturalization.       ^^^^  j^^  ^^-^^  ^^  -^^  ^^  ^^^^   ^^^^  ^le  loOSC  by  not 

thus  becoming  a  citizen  ?  In  the  first  place,  if 
he  does  not  become  a  citizen  he  will  not  have  the 
right  to  call  upon  this  Government  for  protection, 
whenever  he  may  be  in  another  country.  A 
great  deal  of  the  trouble  about  naturalization 
in  this  country  has  arisen  from  the  fact,  which 
you  have  no  doubt  observed  in  the  newspapers, 
that  some  one  is  constantly  popping  up  all  over 
Europe,  charged  with  some  dereliction,  and  claim- 
ing that  the  United  States  must  protect  him 
because  he  has  become  one  of  its  citizens.  This 
protection  is  always  given,  and  generally  secures 
a  fair  consideration  of  the  case.  In  almost  any 
country,  and  even  in  England,  if  the  evidence 
of  citizenship  had  been  established  early  enough, 
the  consul  or  minister  would  have  interposed 
and  seen  that  the  man  had  a  fair  trial,  that  it 
was  not  a  sham,  that  there  was  no  oppressive 
tyranny  exercised  towards  the  accused,  and  that 
the  rules  of  law  were  fairly  observed.  Of  course 
the  representative  of  our  Government  could  not 
compel  the  court  to  do  anything  it  did  not  see 


NATURALIZATION    AND    CITIZENSHIP.  283 

proper  to  do,  or  step  out  of  the  way  to  control  lecture  vi. 
the  trial ;  but  he  would  stand  by  and  see  that  the  what  is  gained  by 

'  ''  naturalizatiou. 

person  who  sought  his  aid  had  a  fair  trial.  If 
he  became  satisfied  in  any  case  that  a  person  so 
accused  did  not  have  a  fair  trial,  or  was  oppres- 
sively tried,  or  was  denied  witnesses  or  counsel 
or  any  of  the  ordinary  rights  of  a  prisoner  on 
trial,  he  would  communicate  that  fact  to  the 
proper  department  of  the  United  States ;  which, 
wliile  it  would  not  perhaps  interpose  in  the  trial, 
would  yet  make  itself  heard  by  the  authorities  of 
the  country  in  which  the  trial  was  had,  and  that 
hearmg  would  amount  to  somethmg.  That  is 
one  of  the  protections  which  it  is  the  correlative 
duty  or  obligation  of  this  Government  to  extend 
in  return  for  that  of  allegiance  on  the  part  of  * 

the  citizen. 

Another  instance  in  which  this  right  of  citizen-  German  claims  to 
ship,   as    acquired   by  naturalization,   has  been  )!^'''*'*''^  ^"*f ''^, 

i-^  ^  J  '  Germans  natural- 

quite  effectual  in  securing  protection  and  has  ized  here. 
been  often  invoked,  but  most  frequently  by 
former  German  subjects,  is  where  persons  who 
have  come  to  this  country  and  become  natural- 
ized have  returned  for  pleasure  or  business  to 
the  country  to  which  they  formerly  owed  allegi- 
ance, and  have  been  there  seized  and  drafted  into 
the  military  service  of  that  government.  Most 
of  these  cases  have  occurred  where  a  German 
State  has  alleged  that  the  man  in  question  had, 
before  he  left  Germany,  contracted  an  obligation 
to  perform  military  service  under  its  law  requir- 
ing every  man  of  a  specified  age  and  capacity  to 
serve  in  some  military  organization  for  a  certain 


284  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  VI.       number  of  years.     This  was  required  of  every 
German  claims  to  j^^,j^j^^^  every  iiian  ill  tum,  by  a  certain  allot- 

military  duty  by  -^  ^^  '      j 

Germaus  natural-  meut  or  by  a  draft.  These  men,  in  regard  to 
whom  the  controversies  arose,  had,  by  that  pro- 
cess and  under  that  law,  as  it  was  supposed 
and  asserted,  become  designated  and  liable  to 
this  period  of  service.  Having  emigrated  before 
it  was  performed,  or  perhaps  before  they  were 
called  on  to  serve,  when  they  returned,  and  their 
presence  became  known  to  the  authorities  who 
administered  these  laws,  they  were  seized,  placed 
under  military  control,  and  required  to  perform 
this  compulsory  military  service.  The  question 
then  arose.  Here  was  a  citizen  of  the  United 
States  by  our  laws,  who  had  renounced  all  alle- 
giance to  the  German  power,  who  according  to 
our  laws  owed  it  no  allegiance,  and  was  bound 
to  render  it  no  service.  He  had  become  one  of 
our  citizens  and  claimed  that,  being  a  citizen  of 
the  United  States,  no  other  country  or  govern- 
ment, when  he  was  about  his  peaceable  business, 
or  because  he  happened  to  be  within  its  limits, 
should  be  permitted  to  draft  him  into  its  military 
service.  We  have  had  a  great  deal  of  trouble 
on  this  subject.  The  resistance  of  the  German 
Government  to  our  claims  was  long,  troublesome, 
and  vexatious.  Generally  where  we  could  find 
the  man,  trace  him  up,  and  make  proper  remon- 
strances, the  authorities  would  release  him  rather 
than  have  a  difficulty  about  it;  nevertheless,  all 
the  time  asserting  their  right  to  enforce  obedience 
if  they  thought  proper  to  do  so.^ 


1  See  Note  upon  this  Lecture. 


NATURALIZATION    AND    CITIZENSHIP.  285 

A  very  interesting  historical  case,  that  of  lectore  vi. 
Martin  Koszta,  of  which  perhaps  some  of  you '^'''^'^''^'=***^^- 
may  have  read,  was  the  subject,  some  thirty  or 
forty  years  ago,  of  a  great  deal  of  newspaper 
comment,  while  Mr.  Marcy  was  Secretary  of 
State.  Koszta  was  an  Austrian  subject  who 
came  over  to  this  country  and  became  natural- 
ized, or,  rather,  had  so  far  begun  the  process 
that  he  had  made  his  declaration  of  intention 
to  do  so,  of  which  he  had  a  certificate.  It 
may  be  that  he  had  been  long  enough  a  resident 
of  the  United  States  to  have  procured  the  second 
order  admitting  him  as  a  citizen  had  he  applied 
for  it,  but  that  seemed  to  be  about  the  only 
defect  on  our  side  of  the  case.  While  matters 
were  in  that  condition  he  went,  not  to  Europe, 
but  to  Smyrna,  a  town  under  Turkish  dominion, 
and  was  there  seized  by  an  Austrian  vessel,  or 
the  Austrian  consul  found  him  and  took  him 
by  force  on  board  of  an  Austrian  vessel.  He 
managed,  however,  before  he  was  taken  out  of 
the  harbor,  to  communicate  with  the  captain  of 
an  American  vessel  of  war  which  was  lying  in 
the  same  port.  This  officer  demanded  the  re- 
lease of  Koszta,  but  the  Austrian  commander 
refused  to  comply.  Thereupon  the  American 
officer  trained  his  guns  upon  the  Austrian  vessel 
with  the  declaration  that  if  he  attempted  to 
leave  the  port  with  that  man  on  board  he  would 
blow  his  vessel  to  pieces.  The  courage  of  the 
American  captain,  and  perhaps  the  superior  size 
of  his  guns,  compelled  the  Austrian  officer  to 
deliver  up  the  prisoner,  which  he  did,  not  to  the 


286  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  VI.       captaiii  of  ouF  vesscl,  biit  to  the  authorities  of 
e  s.osztacase.  ^y^^  port.     He  was,  as  a  matter  of  fact,  turned 
over  to  the  Turkish  authorities.      The  matter 
then  became  the  sul^tject  of  a  long  diplomatic 
correspondence,  mainly  carried  on  here  between 
Mr.  Marcy  and  Chevalier  Hulseman,  the  Austrian 
Minister   to    the    United    States,   which    finally 
ended  in  the  Turkish  authorities  being  allowed 
to  deliver  the  subject  of  this  controversy  into 
our  hands  ;  but  our  right  to  demand  him  was  not 
acknowledged ;  and  that  refusal  was  the  source 
of  some  disagreements  between   the   respective 
governments.^ 
The  right  of  ex-         The  govcmments  of  Europe  for  a  long  time 
patriation.  denied,  and  some  of  them  do  still,  the  right  of  a 

man  to  expatriate  himself.  They  denied  his 
right  to  abandon  his  allegiance  to  the  king  or 
monarch  in  whose  country  he  was  born,  and  to 
transfer  that  allegiance  or  his  home  and  resi- 
dence to  another  country.  A  more  remarkable 
case  than  even  that  of  Koszta  arose  in  this 
country  with  regard  to  the  same  thing.  Very 
shortly  after  our  Government  was  organized 
under  the  Constitution,  these  naturalization  laws 
were  passed  by  the  United  States ;  and  Irish, 
Scotch,  and  English  subjects  of  Great  Britain 
began  to  pour  into  this  country,  naturalize 
themselves,  and  thus  become  citizens.  This 
went  on  without  much  question  until  the  wars 
between  Napoleon  and  England  made  the  mat- 
ter of  securing  a  sufficient  number  of  fighting 

^  See  the  Note  to  tliis  Lecture. 


NATURALIZATION    AND    CITIZENSHIP.  287 

men  a  very  important  one  for  the  latter  conn-  lecture  vi. 
try;  for,  while    Endand    had  a  ffreat   deal    of '^'"^  .'"^^^ ''^  ^''' 

^   '  ^  o  o  patriation. 

money  and  subsidized  other  nations  of  Europe  to 
fight  Napoleon,  it  was  troubled  all  the  time  to 
2:et  sailors  and  soldiers.  It  was  a  small  kino;- 
dom,  with  an  abundance  of  funds  but  a  scar- 
city of  fighting  material.  AYe,  in  the  meantime, 
after  the  War  of  the  Revolution,  had  built  up  a 
little  navy,  of  which,  though  small,  we  felt  very 
proud,  and  it  j)roved  its  worth  when  the  War  of 
1812  broke  out,  because  it  was  made  up  of  good 
fighting  material.  Our  sailors  at  that  time  were 
mostly  natives  of  Ireland,  England,  or  Scotland. 
There  w^ere  not  many  of  our  population  that 
went  into  the  business  of  sailor  soldiers ;  and  on 
our  merchant  vessels  the  sailors  were  nearly  all 
foreigners,  mostly  English.  England  was  then 
frequently  in  great  distress  for  sailors,  often 
needing  more  than  it  could  raise ;  because  it 
was  in  the  habit  of  carrying  on  war  by  blockad- 
ing the  enemies'  ports,  which  required  a  large 
number  of  vessels  and  sailors  to  man  them. 
The  British  Government,  therefore,  assumed  the 
right,  wherever  they  could  find  a  man  who  was 
born  upon  the  soil  of  the  British  Isles,  wdthout 
regard  to  what  ship  or  what  soil  he  was  at  the 
time  npon,  to  impress  him  into  their  own  ser- 
vice. This  claim  of  right  was  not  of  much  con- 
sequence w^ithin  the  limits  of  the  United  States, 
because  no  officer  of  the  English  Government 
could  come  here  and  assert  it  upon  our  soil  or  in 
our  ports ;  but  wdien  they  undertook  to  board 
our  ships  upon  the  seas,  claiming  for  their  war 


288 


LECTUllES    OX    CONSTITUTIOXAL    LAW. 


Lecturk  VI. 
The  right  of  ex- 
patriatiou. 


vessels  the  right  to  search  every  merchant  ves- 
sel, not  only  of  our  country  but  of  all  other 
countries,  and  abusing  that  right  of  searcli  by 
takinc;:  our  sailors  out  of  those  merchant  ves- 
sels  by  the  wholesale  and  transferring  them  to 
their  men  of  war,  our  Government  remonstrated. 
There  were  also  serious  grievances  with  France 
about  which  we  remonstrated  ;  but  neither  coun- 
try paid  much  attention  to  our  complaints. 
Our  worst  grievance,  however,  and  the  one 
which  bore  hardest  upon  us,  was  the  seizing  of 
naturalized  citizens  of  the  United  States  out  of 
our  ships  upon  the  high  seas,  and  putting  them 
into  the  service  of  British  men-of-war.  This 
roused  the  spirit  of  our  people,  and  did  more  to 
bring  about  the  War  of  1812  than  any  other  one 
thing.  You  have  no  doubt  all  heard  of  the  cry 
of  "Free  Trade  and  Sailor's  Rights."  This  did 
not  mean  free  trade  in  the  modern  sense  of 
opposition  to  a  protective  tariff,  Ijut  the  free 
right  to  trade  on  the  seas ;  it  stood  for  the  right 
of  our  vessels  to  go  where  they  pleased,  without 
fear  of  search,  and  for  the  freedom  of  all  our 
citizens  on  board  of  those  vessels.  That  great 
war,  fought  through  four  years,  with  much  loss 
of  treasure  and  some  humiliation,  but  a  great 
deal  of  glory,  closing  with  the  battle  of  New 
Orleans,  was  mainly  to  support  this  doctrine. 
It  was  to  maintain  the  proposition  that  when 
a  man  came  over  to  this  country  and  became  a 
naturalized  citizen,  no  other  government  had  a 
right  to  recapture  him  ;  it  was  waged  in  favor 
of  the  doctrine  of  self-expatriation,  the  right  to 


NATURALIZATION    AND    CITIZENSHIP.  289 

leave  one  country,  go  to  another,  and  there  be-  lecture  vi. 
come  a  citizen,  if  tliat  other  would  accept  him  as  '^^^  ."?*  "^  ^^" 

^  ^  ^  patnatiou. 

such,  and  in  doing  so  to  throw  off  all  allegiance 
to  the  country  of  his  nativity.  But  although 
that  was  the  great  controversy  in  that  war,  it 
did  not  decide  the  question  finally.  In  fact, 
after  both  countries  were  tired  of  fighting,  we 
made  a  treaty  of  peace  in  which  that  matter 
was  left  unsettled.  The  British  did  not  give 
up  this  right  which  they  had  claimed ;  we  got 
something  the  better  of  them  in  regard  to  some 
disputes  as  to  boundaries  and  fisheries  and  other 
questions  which  were  settled,  yet  the  main  ques- 
tion remained  undetermined.  From  that  time 
we  have  gone  on  while  these  troubles  have  been 
pending,  those  with  Germany  about  their  mili- 
tary claims,  and  a  great  many  others  of  a  simi- 
lar character,  negotiating,  writing,  and  talking, 
the  Government  of  this  country  all  the  time 
asserting  this  absolute  right  without  concession, 
until  nearly  all  the  governments  of  the  world, 
even  if  they  have  not  adopted  it  as  international 
law,  have  in  the  main  abandoned  the  idea  that 
a  man  cannot  expatriate  himself.  Where  they 
have  not  done  that  they  have  made  treaties  with 
the  United  States  recognizing  that  right,  which 
amounts  to  about  the  same  thing.  We  have 
treaties  now  with  nearly  all  nations  which 
concede  it,  and  only  one  subject  of  difference 
remains.  That  is  the  German  question,  to 
which  I  have  referred,  wdiether  a  man  who  has 
left  his  native  country,  where  the  law  imposes 
an  obligation  on  the  subject  to  serve  in  some 


290 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  VL 
The  rif^ht  of  ex- 
patriation. 


Right  to  inherit 
real  estate. 


military  organization  for  a  certain  period,  can 
be  compelled  to  render  those  services  if  he 
returns  thither  as  a  naturalized  citizen  of  the 
United  States.  It  is  still  asserted  that  if  he 
goes  back  to  the  land  of  his  birth,  the  govern- 
ment of  which  he  was  before  a  subject  has  a 
right  to  compel  him  to  perform  those  services, 
except  where  they  have  yielded  that  right  by 
treaty.  This  has  now,  I  think,  been  substan- 
tially done,  and  that  is  one  of  the  rights  which 
a  man  acquires  by  naturalization.^ 

Another  right,  perhaps  the  next  in  import- 
ance, is  the  right  to  inherit  property.  It  was 
the  law  of  England  that  no  alien  could  inherit 
any  real  estate  in  the  English  dominions,  nor 
could  he  transmit  any  real  estate,  nor  any  such 
estate  go  through  him,  but  to  do  this  he  must 
be  a  native  citizen.  It  was  said  that  an  alien 
had  no  inheritable  blood  with  regard  to  real 
estate.  This  rule,  however,  had  no  relation  to 
personal  estate.  That  doctrine  of  the  common 
law  became,,  and  is,  except  as  modified  by  stat- 
ute or  treaty,  the  doctrine  of  the  States  of  this 
Union ;  the  title  to  real  estate  being  a  matter 
which  is  prescribed  in  each  State  by  its  own 
laws,  and  not  governed  by  the  laws  of  the  Con- 
gress of  the  United  States.  It  is  one  of  the 
effects  of  this  constitutional  provision,  and  one 
of  the  purposes  for  which  it  was  made,  that 
Congress  should  prescribe  a  uniform  rule  of 
naturalization,  which  should  be  effective  in  all 


1  See  the  Note  to  this  Lecture. 


NATURALIZATION    AND    CITIZENSIIir.  291 

the  States,  and  a  rule  by  which  any  foreigner  or  lectuke  vi. 
alien  midit  become  a  citizen.     Now,  when  by  ^'-,^'*^;"^'''"* 

~  ^  ^  J    real  estate. 

that  process  of  naturalization  he  was  declared 
a  citizen,  he  became  entitled  in  any  State,  where 
he  might  be,  to  inherit  property  and  transmit  it 
by  descent  the  same  as  any  native  citizen.  That 
was  also  one  of  the  advantages  of  naturalization. 

Another  benefit  which  has  been  much  talked  Right  of  suffrage, 
of,  but  which  does  not  amount  to  a  great  deal, 
is  that  of  the  right  of  voting,  as  many  of  the 
States  have  prescribed  as  a  qualification  for  vot- 
ing, that  the  man  must  be  at  least  a  citizen  of 
the  State  where  he  offers  to  vote.  That  is  not 
the  case  in  all  of  the  States,  but  it  is  true  of 
most  of  them.  Some  of  the  Western  States,  I 
think  Minnesota,  and  perhaps  Wisconsin,  where 
there  are  large  numbers  of  Swedes,  Germans, 
and  Norwegians,  have  provisions  in  their  stat- 
utes that  a  man  may  vote  by  reason  of  his 
residence  without  regard  to  citizenship ;  but  the 
majority  of  the  constitutions  of  the  States  of 
the  Union  require  that  the  voters  shall  be  citi- 
zens. By  this  operation  of  naturalization,  and 
by  the  Constitutional  Amendment  which  I  have 
read,  the  alien  becomes  a  citizen  of  whatever 
State  he  may  select  as  his  residence  at  the  time. 
That  is  one  of  the  valuable  things  attaching  to 
naturalization. 

'    There  have  been  times  when  it  was  a  ques-  The  Federal  laws 
tion  whether  this  power  to  prescribe  a  rule  of  arJexcrustir* 
naturalization  was   an   exclusive   power   in   the 
Congress  of  the  United  States,  or  whether  it  was 
one  that  the  States  might  also  exercise.     That 


292  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  VI.       question,  liowever,  has  been  practically  settled 
The  Federal  laws  y      ^j^^  ^^^^  ^-^^^^  ^^iQ  United  States  has  had  a 

on  this  subject  -^ 

are  exclusive.  law  on  the  subject  for  some  eighty  or  ninety 
years,  which,  when  it  was  enacted,  necessarily 
became  the  exclusive  law  in  regard  to  that  mat- 
ter, because  the  power  given  to  the  Congress  is 
"  to  establish  a  uniform  rule  of  naturalization 
.  .  .  throughout  the  United  States."  This  means 
that  the  law  which  Congress  establishes  is  the 
law  of  all  the  States  and  Territories  and  places 
where  naturalization  can  take  place.  It  is,  there- 
fore, practically  an  exclusive  power  with  which 
the  individual  States  cannot  deal. 

There  have  not  been  a  great  many  decisions 
in  our  courts  upon  this  subject  of  naturalization, 
because,  as  I  observed  a  while  ago,  it  has  been 
rather  an  international  question  than  one  of  dis- 
pute among  ourselves.  In  the  case  of  Oshoiii  v. 
Marshall,  c.  J.,  in  The  Bank  of  the  United  States^  however,  the 
^^;^^™/-^""^  Supreme  Court  of  the  United  States,  in  an  opin- 
ion delivered  by  Chief  Justice  Marshall,  made 
the  following  remarks  upon  the  subject  of  a 
naturalized  citizen :  — 

"  He  becomes  a  member  of  the  society,  possess- 
ing all  the  rights  of  a  native  citizen,  and  standing, 
in  the  view  of  the  Constitution,  on  the  footing 
of  a  native.  The  Constitution  does  not  author- 
ize Congress  to  enlarge  or  abridge  those  rights. 
The  simple  power  of  the  national  Legislature  is 
to  prescribe  a  uniform  rule  of  naturalization,  and 
the  exercise  of  this  power  exhausts  it,  so  far  as 

1  9  Wheat.  738,  827. 


NATURALIZATION    AND    CITIZENSHIP.  Z'Jd 

respects  the  individual.     The  Constitution  then  lectuke  vi. 
takes  him  up,  and,  among  other  rights,  extends  ^^l^^^^]^  ^simk^ 
to  him  the  capacity  of  suing  in  the  courts  of  the  f/  (J-  -s'. 
United  States,  precisely  under  the  same  circum- 
stances under  which  a  native  might  sue.     He  is 
distinguishable  in  nothing  from  a  native  citizen, 
except  so  far  as  the  Constitution  makes  the  dis- 
tinction." 

The  Constitution  of  the  United  States  having, 
therefore,  defined  what  citizenship  is,  and  re- 
moved it  out  of  the  domain  of  controverted 
questions  of  constitutional  law,  having  prescribed 
what  constitutes  citizenship  of  the  United  States, 
and  what  citizenship  of  a  State,  and  having 
alluded  to  them  in  distinct  terms,  it  has  become 
a  question  what  are  distinctively  the  rights  of  a 
citizen  of  the  United  States,  and  what  are  the 
rights  of  a  citizen  of* a  State.  That  question 
came  up  very  soon  after  the  adoption  of  the  Miiier,  j.,  in  the 
Fourteenth  Amendment,  in  what  are  called  the  ^^^^^^  ^^^ 
Slaughter  House  Cases.  It  was  insisted  there 
that  the  rights  which  the  Constitution,  or  this 
Amendment,  conferred  on  a  citizen  of  the  United 
States,  were  all  those  of  a  fundamental  character, 
which  regard  the  relations  of  a  citizen  to  the 
society  in  which  he  lives ;  but  the  court,  after 
very  grave  consideration,  in  an  opinion  which  I 
had  the  honor  to  deliver,  held  that  not  to  be  a 
sound  view  of  the  matter ;  that  the  State  in  its 
relation  to  its  citizens,  and  the  citizens  in  their 
relation  to  the  State,  were  interchangeably  bound 
with  regard  to  those  laws  which  go  to  make  up 
the  rights  which  are  protected  by  law :  the  right 


zeu. 


294  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkoture  VI.       of  marriage ;  the  right  of  the  descent  of  property ; 
Miller  J.,  m  the   ^^^^    --^^^  ^^  ^^^  coiitrol  of  children  ;  the  ridit  to 

Slaughter  House  o  7  o 

Cases.  sue  for  property,  and  to  have  it  protected  ;  and, 

in  general,  the  protection  of  life,  liberty,  and  the 
pursuit  of  happiness,  —  these  were  all  founded  in 
the  relation  between  the  State  and  its  citizens. 

Rights  of  a  Citi-  The  Constitution  gave  Congress  no  right  to  inter- 
fere with  that  great  body  of  the  rights  of  the 
citizen.  He  has  a  right  to  look  to  that  govern- 
ment, as  I  have  told  you,  for  protection  in  all 
foreign  countries  wherever  he  might  travel,  on 
the  high  seas  or  the  sands  of  Africa,  in  Europe 
or  in  Australia,  wherever  a  ship  floats,  or  a 
traveller  can  go.  He  has  a  right  to  call  on  the 
United  States  for  protection  wherever  he  may 
be  outside  of  its  lines  or  territories.  He  has 
also  the  right,  as  I  told  you  in  a  previous  lecture, 
to  travel  all  over  this  country  free  from  any  tax, 
assessment,  or  interruption  in  his  passage  from 
one  part  of  the  country  to  another.  He  has  the 
right  of  petition  granted  to  him  by  the  Consti- 
tution of  the  United  States.  He  has  the  right 
to  the  use  of  the  mails  of  the  United  States ;  he 
has,  in  short,  a  right  to  everything  which  that 
great  Government  gives  or  concedes  to  anybody, 
and  these  are  his  rights  as  a  citizen  of  the 
United  States.  They  are  numerous ;  they  are 
great ;  they  are  valuable.  So  it  may  also  be 
said  of  his  rights  as  a  citizen  of  a  State :  they 
are  numerous  ;  they  are  great ;  they  are  impor- 
tant. The  one  affects  one  class  of  relations,  and 
the  other  affects  another  class.  The  citizen  owes 
an  allegiance  to  the  United  States,  and  he  owes 


NATURALIZATION    AND    CITIZEXSIUP.  Ii95 

an  allegiance  to  his  State.     He  is  bound  to  obey  lectlkk  vi. 

the  laws  of  his  State,  and  he  is  bound  to  refrain  J^^^'^  ° 

from  all  criminal  practices  denounced  by  those 

laws.     He  is  bound  to  pay  his  taxes  to  support 

the  government  of  the  State,  and  he  is  bound  as 

well   to    pay  the  taxes  due   from   him  to  the 

United  States ;  to  fight  for  that  Government  if 

called  upon,  or  to  fight  for  his  State,  and  even 

to  give  his  life,  if  need  be,  for  his  citizenship  of 

the  United  States.     He  is  bound  to  be  governed 

by  the  United  States  in  all  of  his  relations  w^ith 

foreign    States.      If   he  wishes  to  travel    in  a 

foreign  State,  and  desires  protection,  the  United 

States  will  give  him  a  passport,  which  a  State  is 

not  permitted  to  do.     If  he  wants  to  take  part 

in  the  administration  of  the  Government  of  the 

United  States,  either  as  an  officer,  member  of 

Congress,  contractor,  or  builder ;  if  he  wants  his 

river  improved,  if  he  wants  the  postal  railway 

extended,  if  he  wants  a  new  post-office,  or  any 

one  of  a  thousand  such  things,  he  must  go  to 

the  Federal  Government.     It  is  the  business  of 

a  lifetime  to  define  the  relations  of  a  man  to 

that  Government,  or  his  relations  to  the  State 

in  which  he  belongs ;  but  they  all  grow  out  of, 

and  constitute   this  doctrine  of  allegiance  and 

protection.     He  owes  his  allegiance  first,  to  the 

Government  of  the  United  States,  because  he  is 

first  of  all  a  citizen  of  that  Government ;  second, 

to  his  State,  because  he  becomes  a  citizen  of  that 

State,  after  being  a  citizen  of  the  United  States, 

by  his  residence. 

I  hope,  gentlemen,  while  I  do  not  wish  any  of 


296  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  VI.      jou  the   misfortime  of  turning  out  politicians, 
Rights  of  a  citi-    ^^^^  ^^'11  ^^^^  .^j^j  consider  this  suljiect  dis- 

zen.  "^  -^ 

passionately,  neither  assuming,  on  the  one  hand, 
that  the  Federal  Government  has  a  right  to 
sweep  away  a  State  as  so  much  rubbish,  nor 
that  any  of  the  States  have  a  right  to  rise  up 
and  overthrow  the  great  Government  of  the 
United  States,  which  is  our  guardian  and  pro- 
tector, and  in  which,  after  all,  are  united  our 
brightest  hopes  and  greatest  interests. 


NOTES  UPON  LECTURE  VI. 


The  relations  between  the  individual  and  the  lecture  vi. 
State  throughout  Christendom,  (Russia  perhaps  tifAreriTan'doc- 
excepted,)    have   been    vastly  modified    by   the  trine  of  citizen- 
influence  of  the  naturalization  laws  and  treaties  ^  '^' 
of  the  United  States. 

When  the  war  of  the  American  Revolution  broke  The  feudal  sys- 
out,  the  feudal  relation  still  prevailed  between  *^™* 
the  sovereign  and  the  subject,  modified  to  some 
extent  by  the  progress  of  civilization,  and  by  the 
influences  of  modern  thought.  The  duties  of  the 
subject  and  the  rights  of  the  sovereign  under 
that  system  sprang  from  occupation  of  the  soil 
by  the  former  under  tenure  from  the  latter, 
either  by  the  actual  tenant,  or  by  the  lord  to 
whom  he  was  feudally  attached. 

In  this  respect  feudalism  differed  from  the  Roman  law. 
civil  law.  The  Roman  citizen's  rights  came 
from  the  State,  of  which  he  formed  an  integral 
part.  The  common  sovereignty  was  lodged  in 
the  people  as  a  whole.  "  The  Emperor  Julian 
said  that  States  are  immortal,  that  is,  that  they 
may  be  so :  because  a  People  is  that  kind  of 
body  which  consists  of  separate  elements,  but  is 
subject  to  one  name,  and  has  one  liahit,  as  Plu- 
tarch says  as  one  spirit,  Paulus.  This  spirit  or 
habit  in  a  people  is  the  full  and  perfect  common 

297 


298  LECTURES    ON    CONSTITUTIONAL   LAW. 

Lecture  VI.       participation  of  civil  life  ;  the  first  production  of 

Komau  law.         wliicli  is  tliG  Sovereignty,  the  bond  by  which  the 

State  is  held  together,  the  vital  breath  drawn  by 

so  many  thousands,  as  Seneca  speaks."  ^ 

Reiatious  of  the        Tlius,  in  the  social    system   which   prevailed 

citizen  to  the       ^udcr  tlic  civil  law,  the  citizen  was  but  an  in- 
state in  America.  ' 

tegral  part  of  the  State  ;  while,  under  the  feudal 
system  he  was  the  subject  of  the  sovereign,  who 
was  master  of  the  soil.  Under  the  American 
system  his  duties  to  the  State  survive,  marked 
and  defined,  however,  by  positive  law ;  but  he 
has  the  right  to  determine  for  himself  who  shall 
be  that  sovereign,  and  in  whose  service  those 
duties  shall  be  performed. 

The  first  act  of  Congress,  pointing  towards  its 

subsequent  policy  in  the  matter  of  citizenship,  is 

to  be  found  in  the  Articles  of  Confederation. 

Interstate  citizen-      The  Fourth  Article  of  the  Articles  of  Confed- 

ship  estahiished    gratiou  provided  that,  "  the  better  to  secure  and 

by  the  Articles  of  ••■  ^ 

Confederation,  perpetuate  mutual  friendship  and  intercourse 
among  the  people  of  the  different  States  in  this 
Union,  the  free  inhabitants  of  each  of  these 
States,  paupers,  vagabonds,  and  fugitives  from 
justice  excepted,  shall  be  entitled  to  all  privi- 
leges and  immunities  of  free  citizens  in  the  sev- 
eral States." 

Of  this  the  historian  says  :  "  In  the  republics 
of  Greece,  citizenship  had  in  theory  been  con- 
fined to  a  body  of  kindred  families,  which  formed 
an  hereditary  caste,  a  multitudinous  aristocracy. 
Such  a  system  could  have  no  permanent  vital- 

1  Grotius,  De  jure  Belli  et  Pads,  Lib.  2,  c.  9,  §  3.  Whewell's  ed. 
Cambridge,  1853,  vol.  2,  p.  2. 


NOTES    UPON    LECTURE   VI.  299 

ity ;    and  the   Greek  republics,   as   the    Italian  lecturk  vi. 
repuljlics   in   after   a^^^es,   died   out   for  want   of  \'"'-''"'''''",?"\''"r" 

_  ^  .  *''"l'  established 

citizens.  America  adopted  the  prmciple  of  the  by  the  Articles  of 
all-embracing  unity  of  society.  As  the  Ameri- 
can territory  was  that  of  the  old  thirteen  Colo- 
nies, so  the  free  people  residing  upon  it  formed 
the  free  people  of  the  United  States.  .  .  .  That 
which  gave  reality  to  the  Union  was  the  article 
which  secured  to  ^  the  free  inhabitants '  of  each 
of  the  States  '  all  privileges  and  immunities  of 
free  citizens  in  the  several  States.'  Congress 
appeared  to  shun  the  term  '  people  of  the  United 
States.'  It  is  nowhere  found  in  their  Articles 
of  Confederation,  and  rarely  and  only  acciden- 
tally in  their  votes  ;  yet  by  this  act  they  consti- 
tuted the  free  inhabitants  of  the  different  States 
one  people.  .  .  .  Congress,  while  it  left  the 
regulation  of  the  elective  franchise  to  the  judg- 
ment of  each  State  in  the  Articles  of  Confedera- 
tion, in  its  votes  and  its  treaties  with  other 
powers,  reckoned  all  the  free  inhabitants,  with- 
out distinction  of  ancestry,  creed,  or  color,  as 
subjects  or  citizens.  But  America,  though  the 
best  representative  of  the  social  and  political 
acquisitions  of  the  eighteenth  century,  was  not 
the  parent  of  the  idea  in  modern  civilization 
that  man  is  a  constituent  member  of  the  State 
of  his  birth,  irrespective  of  his  ancestry.  It  was 
already  the  public  law  of  Christendom."  ^ 

This  provision  of  the  Articles  of  Confederation 
was  incorporated  into  the  Constitution ;  and  to 

1  Bancroft's  History,  Last  Revise,  vol.  5,  pp.  200,  206,  207. 


300  LECTURES   ON   CONSTITUTIONAL    LAW. 

Lecture  VI.       it  was  added  the  power  to  establish  a  uniform 
i^wT*^^'^*^'"""     system    of   naturalization.      Congress    exercised 
this  power  in  March,   1790.^     Under  this  act, 
two    3^ears'    previous    residence   was    required. 
This  was  repealed  in  January,  1795,  and  a  pre- 
vious declaration  of  intention  after  an  at  least 
three  years'  residence  was  required,  and  a  resi- 
dence of  at  least  five  years  before  naturalization.^ 
Further  changes  were  made  from  time  to  time, 
and  the  law  as  it  now  stands  is  codified  in  the 
Revised  Statutes  of  the  United  States.^ 
Relation  of  the         Thcsc  laws,  liowcvcr,  led  up  to  the  doctrine 
naturalized  citi-    ^£  expatriation   and    citizenship  as  now  under- 

zen  to  the  govern-  ^  -•■ 

nient  of  his  native  stood  ;   but  that  doctrinc  was  not  accepted  by 
country.  other   powcrs,  and   was   by  no  means  insisted 

upon,  in  its  full  extent,  by  our  own  political 
ofiicers. 

In  the  wars  of  the  French  revolution  and  the 
French  empire,  Great  Britain,  as  Mr.  Justice 
Miller  points  out,  entirely  disregarded  them. 
In  the  midst  of  the  negotiations  for  peace 
which  terminated  in  the  Treaty  of  Ghent,  Mr. 
Alexander  Baring,  when  urged  by  Mr.  Gallatin 
to  lend  his  official  influence  to  the  conclusion  of 
a  treaty  on  the  basis  desired  by  the  United 
States,  answered :  "  I  must  freely  confess  that, 
highly  as  I  value  a  state  of  peace  and  harmony 
with  America,  I  am  so  sensible  of  the  danger  to 
our  naval  power  from  anything  like  an  unre- 
stricted admission  of  your  principles,  that  I 
should  almost  incline  to  think  it  safer  to  consider 

1  1  Stat.  103,  c.  3.  8  Eev.  Stat.  §§  2165-2174. 

2  1  Stat.  414,  c.  20. 


NOTES    UPON    LECTURE    VI.  301 

an  American  as  an  inevitable  concomitant  of  a  lecture  vi. 
French  war,  and  to  provide  for  it  accordingly."^  Heiation  of  the 

^  ^  "  ♦'  naturalized  citi- 

And  when  the   treaty  of  peace  was  made  and  zen  to  the  govem- 
promulgated,  it  was  found  to  contain  absolutely  ^u"  Jy  "^  "^  '^^ 
nothing  about  this  dispute,  which,  as  Mr.  Justice 
Miller   has   justly   said,  was   one    of   the  main 
causes  of  the  war. 

Meanwhile,  as  this  country  increased  in  popu- 
lation, largely  in  consequence  of  emigration,  the 
same  old  question  arose,  but  in  a  different  form, 
as  pointed  out  by  Mr.  Justice  Miller.  The  Prus- 
sian army,  which-  was  still  kept  up  practically 
on  the  basis  devised  by  Stein  after  the  battle  of 
Jena,  demanded  military  duty  from  Prussians 
who  had  been  to  America,  and  had  been  natural- 
ized there  as  citizens  of  the  United  States,  and 
had  returned  to  Prussia.  To  a  person  who, 
under  such  circumstances  claimed  his  protection 
as  Minister  of  the  United  States  at  Berlin,  Mr. 
Wheaton  answered,  declining  to  interfere,  upon 
the  ground  that,  on  the  applicant's  return  to  his 
native  country,  his  former  nationality  reverted. 
Mr.  Everett  and  Mr.  Webster  substantially  agreed 
with  Mr.  Wheaton.  Mr.  Cass  took  a  somewhat 
more  advanced  position ;  but  until  the  spring 
and  summer  of  1868,  the  question  may  be  fairly 
regarded  as  an  open  one. 

On  the    22d  of   Februar}^  in   that  year  Mr.  The  naturaiiza^ 
Bancroft  concluded  at  Berlin  the  first  of  a  series  *'°"  treaties, 
of  such  treaties,  a  list  of  which  will  be  found  in 


^  Baring  to  Gallatin,  M.,  Ms.  Department  of  State.    Notes  and 
Treaties  (ed.  1889)  p.  1327. 


302 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  VI. 
The  naturaliza- 
tion treaties. 


The  Koszta  case. 


the  margin:^  and,  on  tlie  2Ttli  of  the  following 
July,  Congress  enacted  that  "  the  right  of  ex- 
patriation is  a  natural  and  inherent  right  of  all 
people,  indispensable  to  the  enjoyment  of  the 
rights  of  life,  liberty,  and  the  pursuit  of  happi- 
ness "  ;  that,  "  in  the  recognition  of  this  princi- 
ple this  government  has  freely  received  emigrants 
from  all  nations,  and  invested  them  with  the 
rights  of  citizenship  "  ;  and  that  "  all  naturalized 
citizens  of  the  United  States,  while  in  foreign 
States,  shall  be  entitled  to,  and  shall  receive 
from  this  Government,  the  same  protection  of 
persons  and  property,  that  is  accorded  to  native 
born  citizens  in  like  situations  and  circum- 
stances." ^ 

It  was  some  twenty  years  before  the  con- 
clusion of  these  treaties  and  the  passage  of  this 
act,  that  the  case  of  Martin  Koszta,  to  which 
Justice  Miller  refers,  took  place.  This  was  subse- 
quently explained  and  qualified  by  the  Depart- 
ment of  State.  Just  prior  to  and  during  the 
Cuban  insurrection  of  1869,  1870,  many  Cubans 
declared  their  intention  to  become  citizens  of  the 


1  Austria : 

concluded  September  20,  1870. 

Badeu : 

concluded  July  19,  1868. 

Bavaria : 

concluded  May  26,  1868. 

Belgium  : 

concluded  November  16,  1868. 

Denmark  : 

concluded  July  20,  1872. 

Ecuador : 

concluded  May  6,  1872. 

Great  Britain : 

concluded  May  13,  1870. 

Great  Britain 

(supplemental)  : 

concluded  February  23,  1871. 

Hesse : 

concluded  August  1,  1868. 

North  German  Union : 

concluded  February  22,  1868. 

Sweden  and  Norway : 

concluded  May  20,  1869. 

Wiirttemberg 

concluded  July  27,  1868. 

2  15  Stat.  223,  c 

.249. 

NOTES    UPON    LECTURE    VI.  303 

United  States,  and,  after  doing  so,  returned  to  lecture  vi. 
Cuba.  It  became  a  practical  question  whether  '^^"^  ^''^''^^  '''''^• 
the  United  States  were  to  assume  to  protect  these 
men  against  the  barbaric  severity  of  the  Vohm- 
teers,  who  dominated  Cul^a  at  that  time.  The 
department  said  :  "  Mr.  Marcy  was  very  careful 
in  his  elaborate  letter  concerning  Martin  Koszta, 
not  to  commit  this  Government  to  the  obligation, 
or  to  the  propriety,  of  using  the  force  of  the 
nation  for  the  protection  of  foreign  born  persons 
who,  after  declaring  their  intention  to  become  at 
some  future  time  citizens  of  the  United  States, 
leave  its  shores  to  return  to  their  native  coun- 
try. .  .  .  He  took  especial  care  to  insist  that 
the  case  was  to  be  judged,  not  by  the  municipal 
laws  of  the  United  States,  not  by  the  local  laws 
of  Turkey,  not  by  the  conventions  betw^een  Tur- 
key and  Austria,  but  by  the  great  principles  of 
international  law.  ...  It  has  been  repeatedly 
decided  by  this  department  that  the  declaration 
of  intention  to  become  a  citizen  does  not,  in  the 
absence  of  treaty  stipulations,  so  clothe  the  indi- 
vidual with  the  nationality  of  this  country,  as 
to  enable  him  to  return  to  his  native  land  with- 
out being  necessarily  subject  to  all  the  laws 
thereof."  ^ 

Some  further  official  correspondence  with 
regard  to  this  class  of  cases,  as  illustrating  the 
difficulties  with  which  the  Government  has  to 
contend  in  dealing  with  them,  may  not  be  in- 
appropriate. 

1  Session  Ex.  Doc.  108,  2d  Session,  41st  Congress,  p.  202. 


304  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  VI.  The  quGstions  With  Germany,  to  which  Justice 

Naturaiizationsto  j^.jjg^    alludes,    growiiig    out   of   the    military 

escape  luilitary  700  j 

service.  Action  of  servicG  laws  of  Prussla  and  of  the  Empire,  were 

President  Grant.     ,  iii  z  i.\  x'  iii 

largely  the  cause  oi  the  questions  propounded  by 
President  Grant  to  the  members  of  his  Cabinet, 
to  which  allusion  was  made  in  the  notes  to  Lec- 
ture III.  Since  the  naturalization  treaties  went 
into  operation  matters  have  moved  on  with  less 
friction  than  before.  Native  born  Germans,  who 
seek  naturalization  here  solely  for  the  purpose 
of  escaping  the  performance  of  their  duties  to 
their  native  land,  without  a  purpose  or  intent 
of  doing  their  duty  as  citizens  here,  have  found 
that  the  United  States  expect  them  to  make 
their  home  here  as  a  condition  of  protection  : 
while,  on  the  other  hand,  such  Germans  as 
honestly  cast  their  fortunes  in  with  us,  receive 
the  national  protection  against  the  claims  of  the 
government  of  their  native  land  as  efficiently  as 
it  is  given  to  native  born  citizens. 

Simultaneously  with  the  letter  of  President 
Grant,  calling  for  the  opinions  of  his  Cabinet,  the 
Secretary  of  State  addressed  a  circular  to  the 
Ministers  of  the  United  States  at  Berlin,  Rome, 
and  Paris,  inquiring,  among  other  things,  "  the 
number  of  Americans  whose  residence  in  Ger- 
many [Italy]  [France]  has  been  of  long  con- 
tinuance, or  seems  to  be  indefinite  in  its  intended 
duration."  Mr.  Bancroft,  the  then  Minister  at 
Berlin,  answered :  "Of  Americans  whose  resi- 
dence in  Germany  has  been  of  long  continuance, 
or  seems  to  be  indefinite  in  its  intended  duration, 
I  estimate  the  number  at  10,000,  and  that  num- 


NOTES    UPON    LECTURE    VI.  305 

ber  rather  on  the  increase."     Mr.   Marsh,  the  lecture  vi. 
then  Minister,  addressed  a  circular  to  the  Con-  Nat'.raiiz.tionsto 

'  escape  military 

suls  in  Italy  and  received  from  them  detailed  service.  Action  of 

reports  which  footed   up   225.     He  added :   "  I   '^^^  *° 

have  no  means  for  ascertaining  the  number  of 

Italians  and  other  foreigners  naturalized  in  the 

United  States,  now  residing  in  Ital}^ ;  but  though 

it  is  doubtless  considerably  smaller  than  during 

and  soon    after  the   rebellion,   I  think  it  must 

still  amount  to  several  hundred."     Mr.  Wash- 

burne  reported  from  Paris  that  "  the  number  of 

resident  Americans  in  France  does  not  increase, 

but,  on  the  other  hand,  rather  diminishes." 

Shortly  before  these  inquiries  were  made  a 
correspondence  took  place  between  the  Legation 
at  Paris  and  the  Department  of  State,  which 
may  have  been  instrumental  in  causing  the  in- 
vestigation. Mr.  Washburne  wrote  for  instruc- 
tions in  two  cases. 

The  first  he  stated  as  follows :  Madame  Pepin,  status  of  naturav 
who  applies  on  behalf  of  her  son,  a  youno-  man  '^e^' ^'^'^^ns  who 

J^i  7^0  reside  perma- 

eighteen  years  of  age,  to  have  some  papers  from  nentiy  in  their 
the  legation,  stating  that  he  is  an  American 
citizen,  and  is  to  be  protected  as  such.  His  case ' 
is  as  follows :  John  Pepin,  the  husband  and 
father,  was  a  Frenchman  by  birth.  When  a 
young  man  he  emigrated  to  the  United  States, 
was  educated  in  Kentucky,  and  became  a  natu- 
ralized citizen,  residing  in  New  Orleans.  In 
1850  he  returned  to  France,  leaving  some  prop- 
erty in  New  Orleans,  which  is  still  held  by  his 
family,  he  having  died  several  years  ago.  After 
his  return  to  this  country  he  married  a  French- 


S06  LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  VI.       woman,   by   whom    he    had   a   daughter,   now 
status  of  natui-ai-  ^^g^tv  vears  of  ai^e,  and  the  son  above  spoken 

ized  citizens  who  -^    «^  o    '  i 

reside  periua-  of.  He  never  returned  to  the  United  States  to 
native  laud .^'^^  11  ve,  but  made  France  his  residence  up  to  the 
time  of  his  death.  The  boy  in  question  has  never 
been  to  the  United  States,  though  tlie  mother 
and  daughter  went  there  two  years  ago,  and  the 
Inother  obtained  a  passport  from  the  State  De- 
partment as  an  American  citizen.  She  says 
that  the  boy  got  a  passport  two  years  ago  from 
the  United  States  Minister  in  London,  but  that 
he  had  lost  it." 

To  this  the  Secretary  of  State  answered: 
■*'  Pepin,  the  son  of  a  naturalized  Frenchman, 
(who  returned  to  France  and  died  there,  was 
(never  in  this  country.  ...  It  would  seem  quite 
■possible  that,  were  it  not  for  his  desire  to  avoid 
the  duties  required  by  French  law,  he  would  per- 
haps never  have  dreamed  of  calling  himself  an 
'  '         American  ;  that  he  would  remain  in  France  and 

avoid  all  duties  to  the  United  States;  that  he 
"^  would  call  himself  a  citizen  of  the  United  States 

and  avoid  all  duties  to  France." 
'  The  second  case  was  this  :  "  A  man  and  his 
'wife,  Americans  by  birth,  came  to  Paris  forty 
years  ago,  and  have  lived  here  ever  since.  This 
(has  become  their  permanent  home,  and  they  have 
never  had  any  intention  of  returning  to  the 
i United  States.  Several  of  their  children  have 
been  born  here,  and  have  never  been  to  the 
United  States,  and  never  expect  to  go,  and 
never  want  to  go.  The  question  is,  are  these 
children  citizens  of  the  United  States,  and  is  the 


NOTES    UPON    LECTURE    VI.  307 

Government  of  the  United  States  bound  to  pro-  lecture  vi. 
tect  them  as  such  ?  "  '^^^f"*'  °^  "'^^"••''»'- 

ized  citizens  wlici 

To  this  Mr.  Fish  answered :  "In  the  other  reside perma- 
case  an  American,  whose  name  is  withheld,  has  JJ^"iyg  J^n^tJ*''"' 
lived  with  his  family  forty  years  in  France,  has 
reared  his  children  there,  has  never  proposed  to 
return  to  the  United  States,  and  his  children 
have  never  been  to  the  United  States,  and  never 
expect  to  go,  and  never  want  to  go." 

And  to  the  inquiries  in  both  cases  the  Secretary 
said :  "  In  each  of  these  cases  there  is  a  pre- 
sumption of  a  purpose  of  expatriation  so  strong 
that,  until  it  can  be  rebutted  to  your  satisfac- 
tion, you  will  be  justified  in  concluding  that  the 
persons  respectively  are  not  entitled  to  your 
intervention  to  protect  them  against  the  opera- 
tion of  the  laws  of  the  country  which  they  have 
selected  as  the  place  of  their  residence."^ 

The  political  department  of  the  Government  Rulings  of  the 
has  made  some  rulino-s  on  this  subject  since  the  p*'^'^'^'^'  depart- 

^5  J  ments. 

negotiation  of  the  treaties,  which  deserve  notice. 
The  treaty  with  North  Germany  calls  for  an 
uninterrupted  residence  of  five  years  in  the 
United  States  before  the  naturalized  citizen  is 
entitled  to  the  immunities  guaranteed  by  it. 
It  is  held  that  the  recital  in  the  record  of  the 
naturalization  proceedings  that  the  applicant 
had  resided  continuously  in  this  country  for 
more  than  five  years  does  not  conclude  the 
United  States  as  to  that  fact.^  A  similar  decis- 
ion has  been  made  as  to  the  treaty  with  Austria.^ 

1  Foreign  Relations,  1873,  vol.  1,  pp.  249,  260,  261. 

2  1  Treaties  and  Conventions  (ed.  1889)  p.  1264.     a  lb.  p.  1265. 


o08  LECTURES    ON    CONSTITUTIONAL   LAW. 

lectuke  VI.  Cases  arise,  from  time  to  time,  where  persons 

Rulings  of  the      ^^.      |     ^^le  laws  of  the  United  States,  are  de- 

political  depart-  "      '^  ' 

Hients.  Glared  to  be  citizens  of  tlie  United  States,  are 

also,  by  the  law  of  some  other  country,  held  to 
allegiance  in  that  country.  In  this  class  may 
be  included  persons  born  out  of  the  limits  and 
jurisdiction  of  the  United  States,  whose  fathers 
were,  at  the  time  of  their  birth,  citizens  of  the 
United  States.  Such  a  case  being  submitted  to 
Attorney  General  Hoar,  that  officer  held  that  it 
was  not  competent  for  the  United  States  to  in- 
terfere with  the  rights  of  a  foreign  nation  to  the 
government  and  control  of  persons  claimed  to 
be  its  subjects,  so  long  as  they  were  residing  in 
such  foreign  country.^ 

Any  one  desiring  to  see  the  condition  of  the 
statutes  and  laws  of  the  various  powers  in 
regard  to  this  interesting  subject  will  find  it 
discussed  at  length  in  Calvo.^ 

1  13  Opinions  Attorney  General,  89. 

2  1  Droit  International,  liv.  8. 


YII. 

THE  JUDICIAL  POWER  OF  THE  UNITED 
STATES.^ 

Articlf   III,  Section  1.     The  judicial  Power  of  Lectxtre  VII. 

the  United  States,  shall  be  vested  in  one  supreme 
Court,  and  in  such  inferior  Courts  as  the  Congress 
may  from  time  to  time  ordain  and  establish.  The 
Judges,  both  of  the  supreme  and  inferior  Courts, 
shall  hold  their  Olfices  during  good  Behavior,  and 
shall,  at  stated  Times,  receive  for  their  Services,  a 
Compensation,  which  shall  not  be  diminished  during 
their  Continuance  in  Office. 

Section  2.  The  judicial  Power  shall  extend  to 
all  Cases,  in  Law  and  Equity,  arising  under  this  Con- 
stitution, the  Laws  of  the  United  States,  and  Treaties 
made,  or  which  shall  be  made,  under  their  Authority; 
—  to  all  Cases  affecting  Ambassadors,  other  public 
Ministers,  and  Consuls  ;  —  to  all  Cases  of  admiralty 
and  maritime  Jurisdiction  ;  —  to  Controversies  to 
which  the  United  States  shall  be  a  Party ;  —  to  Con- 
troversies between  two  or  more  States  ;  —  between  a 
State  and  Citizens  of  another  State  ; —  between  Citi- 
zens of  different  States,  —  between  Citizens  of  the 
same  State  claiming  Lands  under  Grants  of  different 
States,  and  between  a  State,  or  the  Citizens  thereof, 
and  foreign  States,  Citizens  or  subjects. 

In  all  Cases  affecting  Ambassadors,  other  public 
Ministers  and  Consuls,  and  those  in  which  a  State 
shall  be  Party,  the  supreme  Court  shall  have  original 
Jurisdiction.  In  all  the  other  Cases  before  mentioned, 
the  supreme  Court  shall  have  appellate  Jurisdiction, 
both  as  to  Law  and  Fact,  with  such  Exceptions,  and 
under  such  Regulations  as  the  Congress  shall  make. 

1  This  is  Lecture  VI  of  the  lectures  delivered  before  the  classes 
of  the  University  Law  School. 

309 


^10 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lkoturk  VII.  The  Trial  of  all  Crimes,  except  in  Cases  of  Im- 

peachment, shall  be  by  Jury  ;  and  such  Trial  shall  be 
held  in  the  State  where  the  said  Crimes  shall  have 
been  committed  ;  but  when  not  committed  within  any 
State,  the  Trial  shall  be  at  such  Place  or  Places  as  the 
Congress  may  by  Law  have  directed. 

Skction  3.  Treason  against  the  United  States, 
shall  consist  only  in  levying  War  against  them,  or  in 
adhering  to  their  Enemies,  giving  them  Aid  and  Com- 
fort. No  Person  shall  be  convicted  of  Treason  unless 
on  the  Testimony  of  two  Witnesses  to  the  same  overt 
Act,  or  on  Confession  in  open  Court. 

The  Congress  shall  have  Power  to  declare  the  Pun- 
ishment of  Treason,  but  no  Attainder  of  Treason 
shall  work  Corruption  of  Blood,  or  Forfeiture  except 
during  the  Life  of  the  Person  attainted. 

Article  VII  of  the  Amendments.  In  Suits  at 
common  law,  where  the  value  in  controversy  shall  ex- 
ceed twenty  dollars,  the  right  of  trial  by  jury  shall  be 
preserved,  and  no  fact  tried  by  a  jury  shall  be  other- 
wise re-examined  in  any  Court  of  the  United  States, 
than  according  to  the  rules  of  the  common  law. 

Article  XI  of  the  Amendments.  The  Judicial 
power  of  the  United  States  shall  not  be  construed  to 
extend  to  any  suit  in  law  or  equity,  commenced  or 
prosecuted  against  one  of  the  United  States  by  Citi- 
zens of  another  State,  or  by  Citizens  or  Subjects  of 
any  Foi-eign  State. 

Judicial  power.  I  HAVE  before  alludcd  to  the  division  which 
the  Constitution  makes  of  the  powers  to  be  ex- 
ercised by  the  National  Government  into  three 
departments :  the  legislative,  executive,  and  ju- 
dicial. That  in  which  students  of  law  will  prob- 
ably be  most  interested  in  having  an  exposition 
of  its  powers  is  the  latter,  to  which  attention 
will  now  be  directed.^ 

My  text,  after  the  manner  of  the  clergy,  is 


1  Courts  of  justice  have  been  described  as  an  institution  framed 
for  the  purpose  of  putting  an  end  to  the  practice  of  private  war. 
AVithout  the  instrumentality  of  judicial  tribunals,  society  would  be 
a  prey  to  perpetual  civil  dissensions. 


THE    JUDICIAL    POWER    OF    THE    UNITED    STATES.  Oil 

the  third  of  the  three  main  articles  of  the  Con-  lectore  vii.  ' 
kitution,  into  which  it  is  divided,  the  first  being '^"^'"'''' p""""' 
devoted  to  the  legislative,  the  second  to  the  ex- 
ecutive, and  the  third  to  the  judicial ;  following 
which  are  some  provisions  establishing  private 
rights,  concerning  the  two  Houses  of  Congress, 
and  several  amendments  touching  other  subjects'. 
■  Article  Third  reads  as  follows  :  — 
^  "Sec.  1.  The  judicial  power  of  the  United 
States  shall  be  vested  in  one  Supreme  Court, 
and  in  such  inferior  courts  as  the  Congress  may 
from  time  to  time  ordain  and  establish.  The 
judges,  both  of  the  Supreme  and  inferior  courts, 
shall  hold  their  offices  during  good  behavior, 
•and  shall,  at  stated  times,  receive  for  their  ser- 
vices a  compensation,  which  shall  not  be  dimin- 
ished during  their  continuance  in  office. 

"  Sec.  2.  The  judicial  power  shall  extend  to 
all  cases,  in  law  and  equity,  arising  under  this 
Constitution,  the  laws  of  the  United  States,  and 
treaties  made,  or  which  shall  be  made,  under 
their  authority ;  to  all  cases  affecting  ambassa- 
dors, other  public  ministers,  and  consuls ;  to  all 
cases  of  admiralty  and  maritime  jurisdiction  ;  to 
controversies  to  which  the  United  States  shall 
be  a  party  ;  to  controversies  between  two  or 
more  States  ;  between  a  State  and  citizens  of 
another  State  ;  between  citizens  of  different 
States ;  between  citizens  of  the  same  State 
claiming  lands  under  grants  of  different  States, 
and  between  a  State,  or  the  citizens  thereof,  and 
foreign  States,  citizens,  or  subjects. 

"  In  all  cases  affecting  ambassadors,  other  pub- 


312  LECTURES    ON    CONSTITUTIONAL    LAW. 

lecturk  VII.      lie  ministers,  and  eonsiils,  and  those  in  which  a 
Judicial  power,     g^^^^  ^j^^^j  ^^  ^^.^^.^^^  ^j^^  Supreme  Court  shall 

have  original  jurisdiction.  In  all  the  other 
cases  before  mentioned,  the  Supreme  Court  shall 
have  appellate  jurisdiction,  both  as  to  law  and 
fact,  with  such  exceptions  and  under  such  regu- 
lations as  the  Congress  shall  make. 

"The  trial  of  all  crimes,  except  in  cases  of 
impeachment,  shall  be  by  jury  ;  and  such  trial 
shall  be  held  in  the  State  where  the  said  crimes 
shall  have  been  committed ;  but  when  not  com- 
mitted within  any  State,  the  trial  shall  be  at 
such  place,  or  places,  as  the  Congress  may  by 
law  have  directed. 

"  Sec.  3.  Treason  against  the  United  States 
shall  consist  only  in  levying  war  against  them, 
or  in  adhering  to  their  enemies,  giving  them  aid 
and  comfort.  No  person  shall  be  convicted  of 
treason,  unless  on  the  testimony  of  two  witnesses 
to  the  same  overt  act,  or  on  confession  in  open 
court. 

"  The  Congress  shall  have  power  to  declare  the 
punishment  of  treason,  but  no  attainder  of  trea- 
son shall  work  corruption  of  blood,  or  forfeiture, 
-  except  during  the  life  of  the  person  attainted."  * 

1  In  this  connection  should  be  read  Article  XI  of  the  Amend- 
ments: "The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity,  commenced  or 
prosecuted  against  one  of  the  United  States  by  citizens  of  another 
State,  or  by  citizens  or  subjects  of  any  foreign  State." 

Mr.  Justice  Story  says,  after  quoting  these  provisions  :  "  Such 
is  the  language  of  the  article  creating  and  defining  the  judicial 
power  of  the  United  States.  It  is  the  voice  of  the  whole  American 
people  solemnly  declared,  in  establishing  one  great  department  of 
that  government,  which  was,  in  many  respects,  national,  and  in 


THE    JUDICIAL    POWER    OF    THE    UNITED    STATES.  313 

Attention  is  first  called  to  the  secqnd  section,  lecture  vii. 
and  the  first  thing  that  requires  or  justifies  any  ^"^'^^^1  ?«*«■•• 
criticism  is  as  to  the  use  of  the  words  "  judicial 
power." 

Wliat  is  judicial  power  ?  It  will  not  do  to  wiiat  is  judicial 
answer  that  it  is  the  power  exercised  by  the  ^"^^"^ 
courts,  because  one  of  the  very  things  to  be  de- 
termined is  what  power  they  may  exercise.  It 
is,  indeed,  very  difficult  to  find  any  exact  defini- 
tion made  to  hand.^  It  is  not  to  be  found  in 
any  of  the  old  treatises,  or  any  of  the  old  Eng- 
lish authorities  or  judicial  decisions,  for  a  very 
obvious  reason.  While  in  a  general  way  it  may 
be  true  that  they  had  this  division  between  leg- 
islative and  judicial  power,  yet  their  legislature 
Wc\s,  nevertheless,  in  the  habit  of  exercising  a 
very  large  part  of  the  latter.  The  House  of 
Lords  was  often  the  Court  of  Appeals,  and  Par- 
liament  was   in   the   habit   of   passing  bills   of 

all,  supreme.  It  is  a  part  of  the  very  same  instrument  which  was 
to  act  not  merely  upon  individuals,  but  upon  States ;  and  to  de- 
prive them  altogether  of  the  exercise  of  some  powers  of  sover- 
eignty, and  to  restrain  and  regulate  them  in  the  exercise  of  others." 
Martin  v.  Hiinter's  Lessee,  1  Wheat.  304,  328. 

1  "  .Judicial  power"  is  the  authority  vested  in  the  judges. 
Bouvier  Law  Dictionary. 

As  to  what  is  meant  by  the  phrase  "judicial  power,"  see  Cal- 
lanan  v.  Judd,  23  Wisconsin,  343,  349.  Also  charge  of  Judge 
Nelson  to  grand  jury  of  the  Circuit  Court,  185L  that  it  is  the  power 
conferred  upon  courts  in  the  strict  sense  of  that  term  ;  courts  that 
compose  one  of  the  great  departments  of  the  government ;  and  not 
power  judicial  in  its  nature,  or  quasi  judicial,  invested  from  time 
to  time  in  individuals,  separately  or  collectively,  for  a  particular 
purpose  and  limited  time.  1  Blatchford,  635.  Gilbert  v.  Priest,  Or> 
Barb.  444,  448. 

The  power  to  hear  and  determine  a  cause  is  jurisdiction  ;  it  is 
coram  judice,  whenever  a  case  is  presented  which  brings  this  power 
into  action.     United  States  v.  Arredondo,  6  Tet.  699,  709. 


314  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkcturk  VII.     attainder  as  well   as  enacting  convictions   for 
What  is  judicial    ^^.^ason  and  other  crimes.^ 

power? 

Judicial  power  is,  jjerhaps,  better  defined  in 
some  of  the  reports  of  our  own  courts  than  in 
any  other  place,  and  especially  so  in  the  Su- 
preme Court  of  the  United  States,  because  it 
has  more  often  been  the  subject  of  comment 
there,  and  its  consideration  more  frequently  nec- 
essary to  the  determination  of  questions  arising 
in  that  court  than  anywhere  else.  It  is  the 
power  of  a  court  to  decide  and  pronounce  a  judg- 
ment and  cany  it  into  effect  between  persons 
and  parties  who  bring  a  case  before  it  for  decis- 
ion.^ 
Acase  is  necessary      Tliis  powcr  "  sliall  cxtcnd  to  all  Cases'"  of  a 

to  its  exercise.  .  •       -i  -i  ,  i  •    ^      •  •  n     ^         t*    e 

particular  character,  which  is  specined.     Joeiore 
there  can  be  any  proper  exercise  of  it  a  "  case  " 


1  The  distinction  between  judicial  and  political  power  is  so  gen- 
erally acknowledged  in  the  jurisprudence  both  of  England  and  of 
this  country,  that  we  need  do  no  more  than  refer  to  some  of  the 
authorities  on  the  subject.  Nabob  of  Carnatic  v.  East  India  Co. , 
1  Ves.  Jr.  371,  375,  393 ;  S.C.  2  Ves.  Jr.  5G,  60  ;  Penn  v.  Lord 
Baltimore,  1  Ves.  Sen.  444,  446,  447  ;  New  York  v.  Connecticut,  4 
Dall.  4,  6  ;  Cherokee  Nation  v.  Georgia,  5  Pet.  1 ;  Bhode  Island  v. 
MassacMisetts,  12  Pet.  657.  They  are  all  in  one  direction.  State 
of  Georgia  v.  Stanton,  6  Wall.  50,  71. 

In  the  early  ages  of  the  English  system,  however,  the  line  be- 
tween the  judiciary  and  the  legislature  was  not  distinctly  marked, 
and  Parliament,  consisting  of  one  great  chamber,  in  which  sat  both 
lords  and  commons,  not  only  made  but  also  interpreted  the  laws. 
But  it  has  now  long  been  settled  in  England  that  the  interpretation 
of  statute  law  belongs  to  the  judiciary  alone,  and  in  this  country 
they  have  claimed  and  obtained  an  equal  control  over  the  construc- 
tion of  constitutional  provisions.     Sedgwick  on  Const.  Law,  18. 

2  Judicial  i^ower  is  never  exercised  for  the  purpose  of  giving 
effect  to  the  will  of  the  judge  ;  always  for  the  purpose  of  giving 
effect  to  the  will  of  the  Legislature  ;  or,  in  other  words,  to  the  Will 
of  the  law.     Oshorn  v.  Bank  of  the  United  States,  9  Wheat.  738. 


THE    JUDICIAL    POWER    OF    THE    UNITED    STATES.  ol5 


must  be  presented  in  court  for  its  action.*     A  lecture  vii 

Acaseisnecesf 
to  its  exercise 


T  ,  •  ,  •  i"      •    1  i.  A  case  is  necessary 

case  miplies  parties,  an  assertion  oi  rigtits,  or  a 


wronsT  to  be   remedied.     The  decisions   of    the 

o 

Supreme  Court  of  the  United  States,  as  well  as 
those  of  other  courts,  contain  many  definitions 
of  what  it  is.  A  reference  to  Paschal's  Anno- 
tated Constitution  will  give  many  of  them,  and 
their  leading  features.  Perhaps  there  is  none 
better  than  in  the  language  of  Chief  Justice 
Marshall :  "  A  case  arises,  within  the  meaning 
of  the  Constitution,  when  any  question  respect- 
ing the  Constitution,  treaties,  or  laws  of  the 
United  States  has  assumed  such  a  form  that  the 
judicial  power  is  capable  of  acting  on  it."  ^ 

In  this  connection  it  is  proper  to  endeavor  to  Functions  of  the 

.    ,1  •  •         J.1      J.  •^      '      court  as  interpre 

correct  the  erroneous  impression  that  prevails  m  ^^^  ^^^  constitu- 
the  minds  of  many  j)ersons  with  regard  to  the  tiou. 
power  of  the  Supreme  Court  of  the  United 
States  as  the  expounder  of  the  Constitution.  It 
has  been  asserted  in  popular  treatises,  in  jDublic 
speeches,  and  political  harangues,  that  the  Su- 
preme Court  of  the  United  States  is  the  final 
expounder  of  that  instrument,  that  it  was  made 


1  In  order  to  entitle  the  party  to  the  remedy  a  case  must  be 
presented  appropriate  for  the  exercise  of  judicial  power  ;  the  rights 
in  danger  must  be  rights  of  persons  or  property  ;  not  merely  polite 
leal  rights,  which  do  not  belong  to  the  jurisdiction  of  a  court,  either 
in  law  or  equity.    State  of  Georgia  v.  Statiton,  0  Wall.  50,  7(5. 

When  a  right  is  asserted  by  a  party  before  a  court  in  the  man- 
ner prescribed  by  law,  it  then  becomes  a  case  to  which  the  judicial 
power  extends.  This  includes  the  right  of  both  iJiwties  to  the  liti- 
gation ;  and  the  case  may  be  said  to  arise  whenever  its  correct 
decision  is  dependent  upon  the  construction  of  the  Constitution, 
laws,  or  treaties  of  the  United  States. 

2  Osborn  v.  Bank  of  the  United  States,  9  Wheat.  738,  819. 


316  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  VII.      for  that  purpose,  and  that  it  is  one  of  its  pri- 
Functious  of  tiie   j^r^^y  functions.     But  it  has  been  over  and  a(>jain 

court  as  interpret-  «^  _  ,        '-^ 

iiig  the  Constitu-  held  by  that  court,  that  all  it  can  do   in  that 
*'°°*  regard  is  to  decide  such  questions  as  involve  a 

construction  of  its  provisions,  and  only  those 
when  they  are  brought  before  it  in  a  suit  be- 
tween proper  parties.  In  some  cases  these  par- 
ties have  been  very  dignified  ones.  The  United 
States  and  great  States  have  appeared  before  its 
bar,  but  in  the  great  majority  of  cases,  where  it 
has  been  called  upon  to  construe  the  Constitution 
of  the  United  States,  it  has  been  in  a  conflict 
between  individuals,  wherein  the  validity  of 
some  law,  or  the  determination  of  some  right 
asserted  by  one  party  and  denied  by  the  other, 
must  be  settled  by  the  authority  of  this  great 
fundamental  charter.  So  this  court  only  does, 
in  its  higher  position  as  the  last  court  to  which 
such  cases  can  be  brought,  what  every  other 
court  in  the  United  States  has  to  do,  whether  it 
be  a  State  or  a  Federal  court.  It  only  decides 
.  such  cases  as  arise  in  the  progress  of  ordinary 
litigation.^ 

It  may  also  be  noted,  before  passing  from  the 
consideration  of  this  part  of  the  clause,  that  the 
judicial  power  "  shall  extend  to  all  cases  "  aris- 


1  This  clause  enables  the  judicial  department  to  receive  jurisdic- 
tion to  the  full  extent  of  the  Constitution,  laws,  and  treaties  of  the 
United  States,  when  any  question  respecting  them  shall  assume  such 
a  form  that  the  judicial  power  is  capable  of  acting  on  it.  That 
power  is  capable  of  acting  only  when  the  subject  is  submitted  to  it 
by  a  party  who  asserts  his  rights  in  the  form  prescribed  by  law. 
It  then  becomes  a  case.  Marshall,  C.  J.,  in  Oshorn  v.  Bank  of 
the  United  States,  9  Wheat.  738,  819. 


THE    JUDICIAL    POWER    OF    THE    UNITED    STATES.  dl7 

ing  under  the  circumstances  specified.     That  is  lecture  vil 
to  say,  to  all  cases  where  a  ric^ht  exists  under  ^""f^'l'^^'^'r 

^^  ~  court  as  interpret- 

the  Constitution,  or  under  a  treaty  which  shall  inKtbeConsUtu- 
be  made  under  the  authority  of  the  Federal  Gov- 
ernment.    The  Federal  power  extends  over,  and 
covers   all    such   cases,   and  they   are    properly 
within  the  jurisdiction  of  its  courts.^ 

This  extension  of  power  over  all  cases  is,  how- 
ever, qualilied  by  the  words  immediately  follow- 
ing: "in  law  or  in  equity."  These  cases  must 
be  in  law  or  in  equity,  with  the  exception  of  ad- 
miralty, as  to  which  there  is  a  separate  clause 
further  on  in  the  section.  Under  this  provision 
an  attempt  has  been  made  to  exclude  a  very 
large  class  of  cases  arising  in  the  State  and 
other  courts,  which  were  of  an  anomalous  char- 
acter. Some  actions  where  remedies  were  given  ' 
by  peculiar  modes  of  proceedmg,  by  summary 
proceedings,  by  attachment,  and  others  at  vari- 
ance with  the  common  law,  were  said  not  to  be 
suits  at  law,  and  yet  did  not  come  under  any 
head  of  equity  jurisprudence.  But  the  decisions 
of  the  Supreme  Court  of  the  United  States  are 
abundant  to  the  effect  that,  with  the  exception 
of  admiralty,  all  modes  of  procedure  for  the 
assertion  of  rights  must  be  arranged  under  the 
one  class  or  the  other,  either  law  or  equity, 
within  the  meaning  of  this  clause.^ 

1  The  judicial  department  is  authorized  to  decide  all  cases,  of 
every  description,  arising  under  the  Constitution  or  laws  of  the 
United  States.     Cohens  v.   Virginia,  6  Wheat.  264,  382. 

2  This  clause  extends  the  jurisdiction  of  the  court  to  all  cases 
described,  without  making  in  its  terms  any  exception  whatever, 
and  without  any  regard  to  the  condition  of  the  party.     If  there  be 


318  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  VII.  Equity    is   a   limited  jurisdiction  which   has 

Equtty  jurisdic-    gj-^^j^  ^^p  j^^  ^\^q  ^[^^q  ^f  ^he  couinion  hiw,  which 

is  in  some  sense  a  restriction  of,  and  departure 
from  that  law.  There  is  not  much  difficulty  as 
to  what  are  cases  in  equity,  and  it  is  sufficient 
to  say,  that  the  Federal  courts  have  held  that 
all  the  cases  that  are  neither  properly  cognizable 
in  admiralty  or  equity  are,  within  this  clause 
of  the  Constitution,  cases  at  law.  Indeed,  the 
Supreme  Court  have  held,  as  they  have  been 
compelled  to  do,  that  when  the  Federal  courts 
come  to  administer  the  rights  or  the  remedies 
claimed  under  what  I  may  venture  to  term  the 
improvements  in  the  modes  of  procedure  which 
have  been  adopted  by  the  codes  of  the  various 
States,  in  most  of  which  equity  and  law  have 
been  consolidated,  as  well  as  under  many  new 
statutes  giving  new  rights,  appointing  new 
modes  of  procedure,  and  fixing  new  remedies, 
they  must  range  the  actions  in  those  courts  upon 
the  equity  or  law  side  as  the  nature  of  the  right 
asserted,  or  the  remedy  given  may  require. 
They  do  this,  as  equity  is  understood  and  was 
understood  in  the  English  courts  at  the  time  of 
the   Revolution.^     Their   equity   jurisdiction    is 

any  exception,  it  is  to  be  implied  against  the  express  words  of  the 
article.  ...  A  case  in  law  or  equity  consists  of  the  right  of  one 
party,  as  well  as  of  the  other,  and  may  be  truly  said  to  arise  under 
the  Constitution  or  a  law  of  the  United  States,  whenever  its  correct 
decision  depends  on  the  construction  of  either.  Chief  Justice 
Marshall,  in  Cohens  v.  Virginia,  6  Wheat.  264,  378. 

1  The  equity  jurisdiction  of  the  courts  of  the  United  States  is 
independent  of  the  local  law  of  any  State,  and  is  the  same  in  nature 
and  extent  as  the  equity  jurisdiction  of  England  from  which  it  is 
derived.     Therefore  it  is  no  objection  to  this  jurisdiction  that  there 


THE    JUDICIAL    POWER    OF    THE    UNITED   STATES.  319 

independent  of  the  local  law  of  any  State,  and  lkctike  vir. 
no  rules  at  law  or  in  equity,  which  have  been  jjon'*^^  ^""^'^  "^" 
adopted  in  any  State  court,  can  abolish  the  sepa- 
rate   and   distinct   jurisdiction.     That  must  be 
administered  on  the  chancery  side  of  the  Fed- 
eral court  which  has  taken  charge  of  it.^ 

One  of  the  distinctions  necessary  to  be  noted  Kisht  of  trial  by 

,!•  1'ii,  ji  ••  c    ii       jury  at  common 

m  this  regard  is  that  another  provision  oi  the  j^w. 
Constitution   declares  that  in  suits  at  common 
law,  where    the   value    in    controversy   exceeds 
twenty  dollars,  every  one  shall  have  a  right  to 
a  trial  by  a  jury.^     The  right  of  trial  by  jury  is 

is  a  remedy  under  the  local  law.  Gordon  v.  Hohart,  2  Sumner, 
401. 

The  remedies  in  courts  of  the  United  States  are  to  be,  at  com- 
mon law  or  in  equity,  not  according  to  the  practice  of  State  courts, 
but  according  to  the  principles  of  common  law  and  equity,  as  dis- 
tinguished and  defined  in  that  country  from  which  we  derive  our 
knowledge  of  those  principles.  Bohinson  v.  Campbell,  3  Wheat. 
211,  222. 

It  is  not  enough  that  there  is  a  remedy  at  law ;  it  must  be  plain 
and  adequate,  or  in  other  words,  as  practical  and  as  efficient  to  the 
ends  of  justice  and  its  prompt  administration,  as  the  remedy  in 
equity.  Bo>/ce''s  Executors  v.  Grundy,  3  Pet.  210,  215;  United 
States  V.  Hoidand,  4  Wheat.  108. 

1  Although  the  forms  of  proceedings  in  the  State  courts  have 
been  adopted  in  the  District  court,  yet  the  adoption  of  the  State 
practice  must  not  be  understood  as  confounding  the  princijiles  of 
law  and  equity,  nor  as  authorizing  legal  and  equitable  claims  to  be 
blended  together  in  one  suit.  The  Constitution  of  the  United 
States,  in  creating  and  defining  the  judicial  power  of  the  General 
Government,  establishes  this  distinction  between  law  and  equity  ; 
and  a  party  who  claims  a  legal  title  must  proceed  at  law,  and  may 
undoubtedly  proceed  according  to  the  forms  of  practice  in  such 
cases  in  the  State  courts.  But  if  the  claim  is  an  equitable  one,  he 
must  proceed  according  to  rules  which  this  court  has  prescribed 
[under  the  authority  of  the  act  of  August  23,  1842],  regulating  pro- 
ceedings in  equity  in  the  courts  of  the  United  States.  Bennett  v. 
Bnttenvorth,  11  How.  669. 

2  In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved, 


320 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  VII. 
Right  of  trial  by 
jury  at  common 
law. 


When  a  case 
arises  under  the 
Constitution. 


no  part  of  the  system  of  equity  jurisprudence, 
and  therefore,  in  order  to  give  proper  effect  to 
all  of  these  provisions,  the  Federal  courts  have 
been  compelled  to  keep  separate  and  distinct 
cases  at  law  and  cases  in  equity.^ 

Proceeding  farther  in  the  consideration  of  the 
language  of  this  clause  we  first  note  that  these 
cases  are  those  "  arising  under  this  Constitution." 
That  is  to  say,  a  case  arises  under  the  Constitu- 
tion whenever  some  constitutional  right  is  denied, 
some  right  which  this  instrument  gives,  whether 
it  be  a  right  to  property,  a  right  of  liberty,  a 
right  to  vote,  or  any  other  right  which  can  be 
traced  to  this  Constitution.  If  that  right  be 
infringed,  denied,  or  imperilled,  it  can  be  brought 
into  the  courts  of  the  United  States  by  virtue  of 
this  provision.^ 

This  is  also  true  of  the  laws  of  tha  United 
States.  These  cases  are  also  those  "arising 
under  .  .  .  the  laws  of  the  United  States."  The 
Constitution  itself  is  a  very  general  instrument. 


and  no  fact  tried  by  a  jury  shall  be  otherwise  re-examined  in  any 
court  of  the  United  States,  than  according  to  the  rules  of  the  com- 
mon law.     Amendment  VII. 

1  The  courts  of  the  United  States  are  required,  both  by  the 
Constitution  and  the  acts  of  Congress,  to  observe  the  distinction 
between  legal  and  equitable  rights,  and  to  enforce  the  rules  and 
principles  of  decision  appropriate  to  each.  Fenn  v.  Holme,  21 
How.  481. 

2  It  is  only  where  the  rights  of  persons  or  property  are  involved, 
and  when  such  rights  can  be  presented  under  some  judicial  form  of 
proceedings,  that  courts  of  justice  can  interpose  relief.  This  court 
can  have  no  right  to  pronounce  an  abstract  opinion  upon  the  con- 
stitutionality of  a  State  law.  Such  law  must  be  brought  into  actual, 
or  threatened  operation  upon  rights  properly  falling  under  judicial 
cognizance,  or  a  remedy  is  not  to  be  had  here.  Dissenting  opinion 
of  Justice  Thompson,  in  Cherokee  Nation  v.  Georgia.,  5  Pet.  1,  76. 


THE    JUDICIAL    TOWER    OF    THE    UNITED    STATES.  321 

The  rights  which  it  confers  and  the  duties  which  lecture  vii. 
it  imposes,  are  stated  in  very  ereneral  lanf»;uag;e  ;  ^V'^^" '■»  •^f-'*'-* 

'^  \  .  .  .  arises  under  the 

but  these  rights  and  duties,  and  the  obligations  Constitution. 
growing  out  of  them,  have  been  put  into  full 
operation  and  defined  and  perfected  by  statutes, 
which  we  designate  the  laws  of  the  United 
States.^  Whenever,  therefore,  an  individual  has 
a  claim  or  right  under  a  statute  of  the  United 
States,  which  he  seeks  to  enforce,  we  see  that 
this  can  be  done  by  —  and  that  the  proper  place 
to  seek  the  power  to  accomplish  it  is  in  —  some 
one  of  the  different  branches  of  the  judicial  de- 
partment of  the  Government  of  the  United 
States.^ 

This  power  extends  also  to  all  cases  arising  cases  arising 
under  "  treaties  made,  or  which  shall  be  made  ""'^*^'^  treaties, 
under  their  authority,"  as  to  which  some  obser- 
vations may  properly  be  made.  A  treaty  always 
means  a  compact  or  convention  between  two 
independent  nations  or  governments.  Indepen- 
dence, or  at  least  some  degree  of  it,  is  necessary 

1  The  Constitution  (Art.  1,  sec.  8,  par.  18)  gives  Congress  the 
power  "To  make  all  laws  which  shall  he  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  Constitution  in  the  Government  of  the  United  States, 
or  in  any  department  or  officer  thereof."  One  of  these  powers  i.s 
the  jitdicial,  embracing  civil  and  criminal  cases  alike. 

The  provision  that  it  shall  extend  to  "  all  cases"  embraces  civil 
actions  and  criminal  prosecutions.  Both  are  equally  within  that 
power.     Tennessee  v.  Davis,  100  U.  S.  257. 

2  The  jurisdiction  vested  in  the  courts  of  the  United  States  .  .  . 
shall  be  exclusive  of  the  courts  of  the  several  States.  Rev.  Stat. 
§711. 

Congress  gave  to  the  Circuit  and  District  Courts  of  the  United 
States,  during  and  immediately  after  the  close  of  the  rebellion, 
jurisdiction  over  many  'questions  which  had  been  previously  left 
entirely  within  the  control  of  the  State  courts. 


3z2  LECTURES    ON    CONSTITUTIONAL    LAW. 

LKrruKK  VII.      in  orcler  that  the  treaty  may  exist  between  the 
Cases  arising       parties   who    make    it.     From    these    principles 

under  treaties.        ^  ^  '■ 

the  conclusion  has  been  reached  that  so  far  as 
the  treaty  itself  is  a  national  obligation  to  be  en- 
forced by  the  action  of  the  States  who  made  it, 
either  by  war,  by  negotiation,  by  modification,  or 
by  appeals  to  the  States,  the  courts  have  nothing 
to  do  with  it.  In  that  case,  they  must  follow 
and  abide  by  what  the  Government  proper  does 
upon  that  subject,  or  what,  in  the  language  of 
the  Supreme  Court  of  the  United  States,  are 
called  the  political  branches  of  the  Government 
having  charge  of  that  relation.^ 

But  a  treaty  may  l^e  the  foundation  of  a  pri- 
vate right,  and  then  it  becomes  a  subject  of 
judicial  action,  as  does  any  other  private  right.^ 

1  "This  court  (iu  Foster  v.  Ncilson,  2  Pet.  253,  307)  did  not  deem 
the  settlement  of  boundaries  a  judicial,  but  a  political  question  —  that 
it  was  not  its  duty  to  lead  but  to  follow  the  action  of  the  other  de- 
partments of  the  Government ;  that  when  individual  rights  depended 
on  national  boundaries,  '  the  judiciary  is  not  that  department  of  the 
Government  to  which  the  assertion  of  its  interests  against  foreign 
powers  is  confided,  and  its  duty  commonly  is  to  decide  upon  indi- 
vidual rights  according  to  those  principles  which  the  political 
department  of  the  nation  has  established.' "  These  views  are 
reiterated  in  United  States  v.  Arredondo,  0  Pet.  699,  711. 

But  this  right  must  be  a  legal  one  .-  the  judicial  power  does  not 
extend  to  all  questions  which  may  arise  under  the  Constitution, 
laws,  and  treaties,  because  they  are  frequently  political  in  their 
character,  and  must  be  decided  by  other  departments  of  the  Gov- 
ernment. Chief  Justice  Marshall  says :  "  The  judiciary  is  not 
that  department  of  the  Government  to  which  the  assertion  of  its 
interests  against  foreign  powers  is  confided  ;  and  its  duty  com- 
monly is  to  decide  upon  individual  rights,  according  to  those  prin- 
ciples which  the  political  departments  of  the  nation  have  estab- 
lished."    Foster  v.  Neilson,  2  Pet.  253,  .306. 

2  A  treaty  is  the  supreme  law  of  the  land.  TJanenstein  v.  Lyn- 
ham,  100  U.  S.  483.  Its  operation  cannot  be  interfered  with  or  in 
any  way  limited  by  a  State,  and  it  overrides  State  laws  in  con- 
flict with  it.     Baker  v.  Portland,  5  Sawyer,  566. 


THE    JUDICIAL    POWER    OF    THE    UNITED    STATES.  323 

This  subject  has  been  well  considered  in  the  case  lectubk  vii. 
of  the  United  States  v.  Rauscher,^  who  was  ^'i;',^'^';"^'^^^^^^^ 
returned  from  Great  Britain  to  this  country  in 
pursuance  of  a  demand  of  the  President,  on  the 
charge  of  murder.  He  was  tried,  and  a  verdict 
of  guilty  rendered  by  the  jury  upon  a  charge  of 
inflicting  cruel  and  unusual  punishment  upon 
one  of  the  seamen  of  the  vessel  on  which  he 
was  an  officer.  He  denied  the  authority  of  the 
court  to  try  him  for  this,  or  for  any  other 
offence,  except  that  for  which  he  had  been  sur- 
rendered in  the  extradition  proceedings.  The 
Supreme  Court  in  response  to  questions  certified 
to  it  by  the  judges  of  the  Circuit  Court,  held 
that  this  contention  was  sound,  and  that  the 
treaty  would,  in  the  event  that  he  was  either 
acquitted,  or  not  tried  for  the  offence  for  which 
he  iiad  been  extradited,  give  him  a  right  to  be 
set  at  liberty  and  allow  him  a  reasonable  time 
to  return  to  Great  Britain.  The  court,  referring 
to  the  Head  Money  Cases,  quoted  from  its 
language  in  that  case  in  reference  to  the  char- 
acter of  a  treaty  as  a  law  of  the  land,  as  fol- 
lows :  — 

"  A  treaty  is  primarily  a  compact  between 
independent  nations.  It  depends  for  the  en- 
forcement of  its  provisions  on  the  interest  and 
the  honor  of  the  governments  which  are  parties 
to  it.  If  these  fail,  its  infraction  becomes  the 
subject  of  international  negotiations  and  recla- 
mations, so  far  as  the  injured  party  chooses  to 

1  119  U.  S.  407. 


324  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  vil  Seek  rcdress,  which  may  in  the  end  be  enforced 
under  trladi.  ^J  ^ctual  war.  It  is  obvious  that  with  all  this 
the  judicial  courts  have  nothing  to  do  and  can 
give  no  redress.  But  a  treaty  may  also  contain 
provisions  which  confer  certain  rights  upon  the 
citizens  or  subjects  of  one  of  the  nations  resid- 
ing within  the  territorial  limits  of  the  other, 
which  partake  of  the  nature  of  municipal  law, 
and  which  are  capable  of  enforcement  as  be- 
tween private  parties  in  the  courts  of  the  coun- 
try. An  illustration  of  this  character  is  found 
in  treaties  which  regulate  the  mutual  rights  of 
citizens  and  subjects  of  the  contracting  nations, 
in  regard  to  the  rights  of  property  by  descent 
or  inheritance,  when  the  individuals  concerned 
are  aliens.  The  Constitution  of  the  United 
States  places  such  provisions  as  these  in  the 
same  category  as  other  laws  of  Congress,  by  its 
declaration  that '  this  Constitution  and  the  laws 
made  in  pursuance  thereof,  and  all  treaties  made 
or  which  shall  be  made  under  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the 
land.'  A  treaty  then,  is  a  law  of  the  land,  as 
an  act  of  Congress  is,  whenever  its  provisions 
prescribe  a  rule  by  which  the  rights  of  the  pri- 
vate citizen  or  subject  may  be  determined.  And 
when  such  rights  are  of  a  nature  to  be  enforced 
in  a  court  of  justice,  that  court  resorts  to  the 
treaty  for  a  rule  of  decision  for  the  case  before 
it,  as  it  would  to  a  statute."^ 

"  The   treaty   of    1842    being    therefore    the 

1  Head  Money  Cases,  112  U.  S.  580,  598.     See  also  C'heio  Heong 
V.  United  States,  112  U.  S.  536,  540,  565. 


THE    JUDICIAL    rOWER    OF    THE    UNITED    STATES.  325 

supreme  law  of  the  land,  of  which  the  courts  lecture  vil 
are  bound  to  take  iudicial  notice,  and  to  enforce  *^'^?'' y^'!'.^' 

J  '  under  treaties. 

in  any  appropriate  proceeding  the  rights  of 
persons  growing  out  of  that  treaty,  we  proceed 
to  inquire,  in  the  first  place,  so  far  as  pertinent 
to  the  questions  certified  by  the  circuit  judges, 
into  the  true  construction  of  the  treaty."  ^ 

Passing  on  in  the  consideration  of  this  sec- 
tion, we  note  that  the  judicial  power  not  only 
extends  to  cases  arising  under  the  Constitution 
and  laws  of  the  United  States,  and  treaties  made 
under  its  authority,  but  is  directed  to  specific 
classes  of  cases.  The  text  here  assumes  another 
form  of  expression.  Heretofore  it  has  been 
dealing  with  the  subject  matter  of  the  suit  or 
with  the  nature  of  the  controversy.  Now  it 
speaks  of  cases  affecting  classes  of  people.  Let 
us  consider  them  in  their  order. 

"  The  judicial  power  shall  extend  .  .  .  to  all  cases  affecting 
cases  affecting  ambassadors,  other  public  min-  ^'"'^^^s^'^'^'^s- 
isters,  and  consuls."  Every  diplomatic  represent- 
ative, such  as  an  ambassador,  or  a  minister  or  a 
consul  at  one  of  our  various  ports,  has  a  right  to 
have  any  case  affecting  his  rights  tried  in  a 
Federal  court.  This  is  true,  no  matter  what 
his  grade  or  rank,  and  some  of  these  diplomatic 
gentlemen  have  very  high  sounding  titles,  such 
as  Minister  Plenipotentiary  and  Envoy  Extraor- 
dinary. The  reason  for  this  provision  is  easy  to 
be  understood.  These  persons  are  the  represent- 
atives   of     foreign     governments,    independent 

1  United  States  v.  Raiischer,  119  U.  S.  407,  419. 


326 


LECTUKES    ON    CONSTITUTIONAL    LAW. 


Lecturk  VII. 
Cases  affecting 
ambassadors. 


Admiralty  and 
maritime  juris- 
diction. 


nations,  and  should  not,  therefore,  be  subjected 
to  the  power  of  individual  States  who  have  no 
relation  to  those  governments.  Cases  in  which 
they  are  concerned  can  only  be  brought  before 
the  courts  of  the  United  States,  who  can  look 
into  the  matters  at  issue  and  right  them. 

It  shall  also  be  extended  "  to  all  cases  of 
admiralty  and  maritime  jurisdiction."  ^  That 
is  a  very  peculiar  thing  to  be  in  this  Constitution. 
I  suppose  the  reason  it  was  put  there  was  that 
it  was  considered  to  be  in  the  nature  of  an  inter- 
national relation,  coming  immediately,  as  it 
does,  in  juxtaposition  with  the  clause  relating 
to  ambassadors  and  other  public  ministers  and 
consuls.  Doubtless  that  is  why  it  was  taken 
out  from  State  jurisdiction  and  placed  within 
the  power  of  the  Federal  judiciary ;  for,  although 
admiralty  cases  do  not  involve  any  law  or  stat- 
ute of  the  United  States,  nor  the  Constitution  of 
the  United  States,  nor  any  treaty,  yet  at  the 
time  the  Constitution  was  framed,  the  admiralty 
jurisdiction  was  supposed  to  be  limited,  as  it 
was  in  England,  to  traffic  on  the  ocean,  and  the 
affairs  of  vessels,  seamen,  and  navigators  upon 
the  tidal  waters  of  the  country.  It  was  thus 
thought  to  be  only  properly  cognizable  by  the 
courts  of  the  Central  Government.^     In  connec- 


1  In  the  Federalist,  No.  80,  it  is  said:  "The  most  bigoted  idol- 
izers  of  State  authority  have  not  thus  far  shown  a  disposition  to 
deny  the  National  Judiciary  the  cognizance  of  maritime  causes. 
These  so  generally  depend  on  the  laws  of  nations,  and  so  com- 
monly affect  the  rights  of  foreigners,  that  they  fall  within  the 
considerations  which  are  relative  to  the  yjublic  peace." 

2  The  exclusive  cognizance  of  all  cases  of  this  character  was 


THE    JUDICIAL    POWER    OF    THE   UNITED    STATES.  :527 

tion  with  this  view  of  the  subject  it  may  be  well  lectuke  vii. 
to  note  also,  that  this  particular  provision  is  an  ^^''"""'"y  a'"' 
interpolation  of  a  clause  regarding  the  matter  diction. 
of  jurisdiction  among  those  which  concern  the 
character  of  the  parties. 

At  this  point  the  word  "cases"  is  dropped,  as  when  the  United 
well  as  the  subject  matter  of  jurisdiction,  and  ^^'^^^'^  ^^  ^  p^"^- 

vested  in  the  District  Courts  by  this  clause  and  the  judicial  act 
of  1789.  No  attempt  was  made,  however,  to  define  the  meaning  of 
the  terms  or  to  fix  the  limits  of  their  jurisdiction.  Very  few  cases 
came  to  the  Supreme  Court  involving  these  questions  up  to  1840, 
but  the  principle  was  established  that  the  true  test  of  the  jurisdic- 
tion of  a  court  of  admiralty  was  whether  the  vessel  was  engaged, 
substantially,  in  maritime  navigation,  upon  the  tidal  waters  of  the 
country.     The  Steamboat  Orleans  v.  Fhcebus,  11  Pet.  175. 

To  give  jurisdiction  the  cause  of  action  must  have  arisen  upon 
waters  affected  by  the  tide.  The  District  Court  was  held  not  to 
have  jurisdiction  of  a  suit  for  wages  earned  on  a  voyage  from  Ken- 
tucky up  the  Missouri  River  and  back.  The  Thomas  Jefferson,  10 
Wheat.  428.     [1825]. 

In  other  cases  following  the  jurisdiction  of  admiralty  courts 
was  limited  to  tide  waters,  or  where  the  influence  of  the  tide  was 
at  all  felt.  The  Planter,  7  Pet.  324 ;  United  States  v.  Coombs, 
12  Pet.  72. 

In  the  case  of  a  collision  upon  the  Mississippi  River,  ninety 
miles  above  New  Orleans,  but  within  the  ebb  and  flow  of  the  tide, 
it  was  held  that  the  expression  in  the  Constitution  was  neither 
limited  to  nor  to  be  interpreted  by,  what  were  cases  of  admiralty 
jurisdiction  in  England  when  the  Constitution  was  adopted  by  the 
States  of  the  Union,  and  that  in  cases  of  tort  or  collision  as  far  up 
a  river  as  the  tide  ebbs  and  flows,  although  it  may  be  infra  corpus 
comitatus,  courts  of  admiralty  have  jurisdiction.  Wariiiy  v.  Clarke, 
5  How.  441.  [1847].  See  also  llie  Lexington,  6  How.  344;  St. 
John  V.  Paine,  10  How.  557;   The  \eui  Jersey,  10  How.  586. 

By  the  act  of  February  26,  1845,  Congress  extended  the 
jurisdiction  to  the  great  lakes,  5  Stat.  726,  and  the  tide-water 
restriction  was  entirely  abandoned  by  the  Supreme  Court  in  The 
Genesee  Chief,  12  How.  443,  extending  the  jurisdiction  to  all  public 
navigable  lakes  and  rivers  where  commerce  is  carried  on  between 
different  States  or  with  a  foreign  nation.  This  doctrine  was  defined 
and  reaifirmed  in  The  3lagnolia,  20  How.  296  ;  llie  Eagle,  8  Wall. 
15;  l^he  Montello,  11  Wall.  411 ;  Miller  v.  Mayor  of  New  York, 
109  U.  S.  385. 


328 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  VII. 
Wlieu  the  Uuited 
States  is  a  party. 


Controversies 
between  States. 


the  section  proceeds  to  give  jurisdiction  by  a 
description  of  the  persons  or  parties  who  may 
come  before  the  Federal  courts.  The  judicial 
power  shall  extend  "  to  controversies  to  which 
the  United  States  shall  be  a  party."  Whenever 
the  United  States  is  a  party  in  a  suit  the  Fed- 
eral courts  may  have  jurisdiction ;  that  is, 
courts  acting  under  the  Federal  power.  They 
are  tribiuials  established  under  the  authority  of 
Congress,  and  in  those  courts  alone  can  the 
United  States  be  sued.^  These  courts  take  juris- 
diction of  suits  in  which  the  United  States  sues 
to  recover  property  or  taxes,  of  suits  upon  the 
bonds  of  defaulting  officers,  of  prosecutions  for 
claims  against  the  United  States,  and  many 
other  cases  in  which  the  General  Government 
sues  in  the  forum  of  its  own  creation. 

The  judicial  power  is  next  extended  "to  con- 
troversies between  two  or  more  States."^  There 
never   has   been  a  tribunal   known   in  history. 


1  Except  where  Congress  has  provided  that  the  United  States 
cannot  be  suod.     United  States  v.  Lee,  106  U.  S.  196. 

2  The  effect  of  the  want  of  this  power  is  aptly  illustrated  in  the 
language  of  the  Federalist,  No.  21,  regarding  the  American  Confed- 
eracy which  then  existed.  "The  next  most  palpable  defect  of  the 
subsisting  Confederation,  is  a  total  want  of  a  sanction  to  its  laws. 
The  United  States,  as  now  composed,  have  no  power  to  exact  obedi- 
ence, or  punish  disobedience  to  their  resolutions,  either  by  pecuni- 
ary mulcts,  by  a  suspension  or  divestiture  of  privileges,  or  by  any 
other  constitutional  means.  There  is  no  express  delegation  of 
authority  to  them  to  use  force  against  delinquent  members;  and  if 
such  a  right  should  be  ascribed  to  the  Federal  head,  as  resulting 
from  the  nature  of  the  compact  between  the  States,  it  must  be  by, 
inference  and  construction,  in  the  face  of  that  part  of  the  second 
article,  by  which  it  is  declared,  '  that  each  State  shall  retain  every 
power,  jurisdiction,  and  right,  not  expressly  delegated  to  the  United 
States  in  Congress  assembled.'  " 


Controversies 
between  States. 


THE    JUDICIAL    TOWER    OF    THE    UNITED    STATES.  329 

anterior  to  the  formation  of  this  Constitution,  lecture  vil 
which  had  jurisdiction,  in  the  full  sense  of  that 
word,  of  controversies  between  States.^  The  old 
Aniphictyonic  Council  among  the  Greeks  might 
possibly  have  been  called  a  court  or  tribunal  in 
some  sense,  but  certainly  not  in  the  broad  way 
in  which  the  term  is  applied  to  the  Supreme 
Court  of  the  United  States.     That  council  could 

^  In  the  Germanic  Confederation  there  was  a  tribunal  in  some 
respects  resembling  the  Supreme  Court  of  the  United  States.  The 
Chamber  of  Wetzlar,  or  Westphalia,  possessed  exclusive  jurisdic- 
tion in  deciding  upon  disputes  between  members  of  the  Empire. 
But  it  had  no  power  to  execute  its  decisions.  The  laws  operated 
not  upon  individuals,  but  upon  States ;  and  the  sentence  of  the 
supreme  judicial  tribunal  had  no  higher  effect.  The  consequence 
was  that  it  became  necessary  to  resort  to  force,  and  to  this  end  the 
Empire  was  divided  into  circles,  the  entire  military  force  of  which 
was  at  the  disposal  of  the  Emperor,  to  enable  him  to  execute  the 
sentence  of  the  court  against  a  refractory  member.  Under  the  new 
constitution  of  1815  a  different  organization  took  place.  If  the 
rights  of  one  State  are  invaded  by  another  State,  the  injured  party 
must  choose  one  of  three  members  of  the  diet,  selected  by  the 
defendant ;  or  if  the  defendant  neglected  to  select,  the  diet  is  bound 
to  name  them.  And  the  court  of  final  resort  in  the  State  of  the 
member  thus  chosen  decides  the  case.  And  if  the  party  against 
whom  the  judgment  is  pronounced  does  not  obey,  military  force  is 
resorted  to,  to  coerce  submission.  There  does  not  appear  to  have 
been  any  judicial  tribunal,  either  under  the  old  or  new  constitu- 
tions, for  the  puqiose  of  settling  disputes  between  the  States  and 
the  Confederacy.  The  diet,  or  national  legislature,  seems  to  have 
possessed  this  power.  The  American  system  stands  alone  amid 
the  institutions  of  the  world,  and  although  it  was  a  natural  conse- 
quence of  the  adoption  of  the  perfect  form  of  confederation,  yet  as 
this  species  of  government  is  a  work  of  the  greatest  refinement,  and 
the  result  of  a  very  high  state  of  civilization,  the  organization  of 
the  national  judiciary  may  be  pronounced  one  of  the  greatest 
achievements  which  political  science  has  made.  Grimke  on  Free 
Institutions,  p.  389,  Cincinnati,  1848. 

In  the  Federalist,  No.  80,  reference  is  made  to  the  Imperial 
Chamber  of  INIaximilian,  which  is  said  to  have  been  a  court  invested 
with  authority  to  decide  finally  all  differences  among  the  members 
of  the  Germanic  body. 


330 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lectxire  VII. 

Controversies 
between  States. 


Controversies 
between  a  State 
and  citizens  of 
another  State. 


meet  and  hear  the  complaints  of  the  Greek  States 
against  each  other,  and  in  that  forum  they  could 
complain  of  each  other's  acts.  Upon  such  hear- 
ing the  council  could  recommend  what  could  be 
done,  but  it  had  no  power  to  carry  its  deter- 
minations into  effect.  The  Constitution  of  the 
United  States,  however,  creates  a  court  which 
can  not  only  hear  and  determine  all  controver- 
sies between  different  States,  of  which  it  is  given 
original  jurisdiction,  but  can  also  bring  them 
before  it  by  process,  as  it  can  bring  the  humblest 
citizen,  and  declare  its  judgment,  which  it  has 
usually  been  able  to  enforce.^ 

It  also  extends  to  controversies  "  between  a 
State  and  citizens  of  another  State."  ^  That  is 
to  say,  while  a  State  cannot  sue  one  of  its  own 
citizens  in  the  courts  of  the  United  States,  it  can 
sue  those  of  other  States.  As  this  Constitution 
stood  at  the  time  it  was  adopted,  a  citizen  of  one 
State  could  sue  another  State  in  the  Federal 
courts,  but  as  soon  as  a  case  of  that  kind  origi- 


1  That  a  person  cannot  sue  his  own  State,  except  under  some 
State  law,  is  well  settled.  Hans  v.  Louisiana,  24  Fed.  Rep.  55. 
[See  134  U.  S.  1,  for  the  action  of  the  Supreme  Court  on  this  case.] 

2  Nor  can  that  be  accomplished  by  indirect  means  which  cannot 
be  done  directly.  The  history  of  Article  XI  of  the  Amendments 
to  the  Constitutions,  and  the  causes  which  led  to  its  adoption,  are 
reviewed  in  the  case  of  New  Hampshire  v.  Louisiana,  108  U.  S.  76, 
and  it  was  decided  that  unless  the  State  prosecuted  consents,  that 
amendment  prohibits  the  court  from  entertaining  jurisdiction  of  a 
case  in  which  one  State  seeks  relief  against  another  State  on  behalf 
of  its  citizens,  in  a  matter  in  which  the  State  prosecuted  has  no 
interest  of  its  own ;  that  one  State  cannot  create  a  controversy 
with  another  State,  within  the  meaning  of  that  term  as  used  in  the 
judicial  clauses  of  the  Constitution,  by  assuming  the  prosecution  of 
debts  owing  by  the  other  State  to  its  citizens. 


THE    JUDICIAL    POWER    OF    THE    UNITED    STATES.  331 

nated  in  which  a  State  found  its  dignity  infringed  lecture  vii. 
and  it  was  seen  that  a  State  could  be  broui:!:ht  l'"'"^'""^''"'*;''. 

n        between  a  State 

into  court  by  any  one,  a  requisite  number  of  «i"d  t^'tizeus  of 
States  modified  this  provision  by  declaring  that 
it  should  not  apply  to  suits  by  citizens  of  one 
State  against  another  State.  The  jurisdiction 
is  now  between  States,  which  was  discussed  in  a 
preceding  paragraph,  and  between  a  State  and 
citizens  of  another  State  when  the  State  is 
plaintiff.^ 

We  now  come  to  controversies  "  between  citi-  Between  citizens 

p      T  cc  ,     cit     .        )>        TT  •  •,     1         of  different  States. 

zens  01  ditterent  btates.  Here  is,  as  it  has 
turned  out,  the  largest  source  of  the  jurisdiction 
of  the  Federal  courts.  In  the  previous  part  of 
this  section    the    right  to   sue    in    the    Federal 

1  The  impression  prevailed  after  tlae  adoption  of  the  Constitution 
in  1789  that  a  citizen  of  one  State  or  an  alien  might  sue  a  State. 
Hamilton  refers  to  this,  and  denies  it,  in  the  Federalist,  No.  81. 
Madison  and  Marshall  both  denied  its  existence  in  the  course  of 
the  debates  on  the  Constitution  in  Virginia.  It  was,  however, 
maintained  in  Chisholm  v.  Georgia,  2  Dall.  419,  in  1793.  William 
Vassal,  a  British  subject,  soon  after  brought  a  suit  in  the  Supreme 
Court  to  set  aside  a  confiscation  of  his  property  in  Massachusetts. 
Process  was  served  on  the  governor  of  the  State,  John  Hancock. 
The  General  Court  was  convened  by  him,  and  the  authority  ques- 
tioned. It  was  argued  that  such  suit  was  contrary  to  the  principles 
of  the  Federal  Government.  It  decided  that  the  Federal  Consti- 
tution should  be  amended  in  this  respect,  and  in  1794  a  senator 
from  that  State  introduced  in  the  Senate  of  the  United  States,  and 
secured  the  adoption  of  the  Eleventh  Amendment  by  that  body. 
It  was  declared  in  force  January  8,  1798.  The  cases  of  Chisholm 
and  Vassal  were  never  prosecuted  to  judgment,  and  no  attempt  has 
been  since  made  to  so  use  the  power  of  the  court  against  a  State  at 
the  suit  of  an  individual. 

The  amendment  is  as  follows:  "The  judicial  power  of  the 
United  States  shall  not  be  construed  to  extend  to  any  suit  in  law  or 
equity,  commenced  or  prosecuted  against  one  of  the  United  States 
by  citizens  of  another  State,  or  by  citizens  or  subjects  of  any  for- 
eign State."     Constitution,  Art.  XI  of  Amendments. 


332  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  VII.  courts  was  granted  in  any  action  arising  under 
ofdiffTreutstates  ^^^^  Constitution,  laws,  and  treaties  of  the  United 
States,  without  regard  to  the  citizenship  or  resi- 
dence of  the  parties  thereto ;  but  here  it  is  the 
character  of  the  party  which  gives  the  right  to 
sue  without  reference  to  the  nature  of  the  mat- 
ter at  issue.  A  class  of  persons  is  here  desig- 
nated who  can  bring  suits  in  the  Federal  courts, 
no  matter  what  may  be  the  cause  of  action.  It 
may  arise  on  a  promissory  note,  out  of  an  assault 
and  battery,  or  from  any  other  matter  which 
can  become  the  subject  of  a  judicial  investiga- 
tion. A  person  residing  in  Maryland  can  sue 
in  the  courts  of  the  United  States  a  person 
residing  in  Virginia,  and  e  co?werso,  and  so  of 
other  States.  If  a  person  has  the  qualification 
of  citizenship  in  one  State,  and  his  adversary 
has  it  in  another  State,  the  suit  can  be  brought 
in  the  Federal  courts. 

The  reason  for  this,  as  has  been  frequently 
said  by  commentators  and  by  courts,  was  the 
fear  in  the  minds  of  the  makers  of  the  Consti- 
tution that  the  local  prejudice  likely  to  arise  in 
favor  of  a  man  sued  in  the  courts  of  his  own 
State  would  result  in  unfair  decisions  against  his 
non-resident  adversary.  Suppose,  for  illustra- 
tion, that  one  party  who  is  living  in  Boston 
brings  a  suit  against  a  man  residing  in  New 
Orleans.  It  was  supposed  that  the  popularity 
or  the  home  influence,  of  the  man  who  was  thus 
sued  in  New  Orleans,  and  possibly  some  irrita- 
tion or  ill-feeling  against  citizens  of  another 
State,    might    stand    in    the    way   of    the    just 


THE    JUDICIAL    POWER    OF    THE    UNITED    STATES.  iio6 

determination  of  the   claim  of   the  man   from  lecturk  vii. 

-[-J      ,  Between  ciiizf  iis 

iJOStOn.  of  dififerent  States. 

So,  also,  seeing  that  the  Constitution  had 
provided  that  the  man  so  sued  for  an  amount 
exceeding  twenty  dollars  in  value  might  demand 
a  trial  by  a  jury,  and  considering  that  the  jury 
might  be  affected  by  this  class  of  prejudices,  it 
was  thought  wise  that  a  tribunal  that  was  sup- 
posed to  be  impartial  should  be  provided,  and 
one  which  did  not  owe  its  appointment  or  com- 
pensation to  the  State  in  which  the  case  was 
tried.  It  was  thought  that  a  court  owing  its 
allegiance  to,  and  receiving  its  commission  from 
the  United  States,  would  be  a  safer  tribunal  than 
a  court  which  was  commissioned  by  a  State, 
which  could  be  influenced  by  a  vote  of  a  major- 
ity of  its  citizens,  and  might  be  swayed  more  or 
less  in  its  decisions  from  the  absolute  principles 
of  justice.^  It  was  for  these  reasons  -that  this 
provision  was  placed  in  the  Constitution,  and  it 
has  been  and  is  to-day,  in  the  ratio  of  four  to 
one,  the  source  of  controversies,  suits,  and  cases 
in  the  courts  of  the  United  States. 

1  One  great  object  in  the  establishment  of  the  courts  of  the 
United  States  and  regulating  their  jurisdiction  was,  to  have  a  tri- 
bunal in  each  State,  presumed  to  be  free  from  local  influence  ;  and 
to  which  all  who  were  non-residents  or  aliens  might  resort  for  legal 
redress.     Gordon  v.  Longest,  16  Pet.  97. 

"In  the  argument  the  court  has  been  admonished  of  the  jeal- 
ousy with  which  the  States  of  the  Union  view  the  revising  power 
intrusted  by  the  Constitution  and  laws  to  this  tribunal.  To  obser- 
vations of  this  character  the  answer  uniformly  has  been  that  the 
course  of  the  judicial  department  is  marked  out  by  law.  We  must 
tread  the  direct  and  narrow  path  prescribed  for  us.  As  this  court 
has  never  grasped  at  ungranted  jurisdiction,  so  it  never  will,  we 
trust,  shrink  from  that  which  is  conferred  upon  it."  Chief  Justice 
Marshall,  in  Fisher  v.  Cockerell,  5  Pet.  248. 


334  LECTURES    ON  '  CONSTITUTIONAL   LAW. 

lectuke  vn.  The  next  class  of  cases  to  which  the  judicial 

Citizens  of  the      power  cxtcnds  is  one  that  depends  partly  upon 

same  State  claim-  i  i.  i.  ./       j. 

in<,'  lands  under    the  citizensliip  of  the  party  and  partly  upon  the 
States  °    '  ^^^"  character  of  the  particular  issue.     It  relates  to 
controversies  "  between  citizens  of  the  same  State 
claiming  lands  under  grants  of  different  States."  ^ 
Virginia,  at  one  time,  claimed  a  large  part  of 
what  was  known  as  the  Northwestern  Territory. 
Connecticut   had 'a  grant  of    land  which  is  in- 
cluded in  the  State  of  Ohio,  what  is  called  the 
■     "  Western  Reserve,"  with  probably  a  population 
of  a  quarter  of  a  million.     It  was  supposed  tliat 
where  there  were  grants  under  the  authority  of 
different  States   there  would   be   controversies. 
This  provision  was,  therefore,  introduced   here 
for  the    purpose   of   giving   the  Federal  courts 
jurisdiction  of  that  class  of  cases.^ 
Between  a  State,       Finally,  it  is  extended  to  controversies,  "  be- 
or  Its  citizens,  and  ^^yggjj  a  State,  or  the  citizens  thereof,  and  for- 

foreign  states  or        ^ 

citizens.  cigu  statcs,  citizcus,  or  subjects."     Every  foreign 

state,  or  any  of  its  citizens,  is  entitled  to  sue  any 
of  our  citizens  in  the  Federal  courts,  and  if  a 
citizen  of  this  country  can  get  service  of  process 
upon  them,  he  has  a  right  to  sue  them  in  the 
same  tribunals.^ 

1  These  are  the  only  instances  in  v:hirh  the  proposed  Constitution 
directly  contemplates  the  cognizance  of  disputes  between  the  citizens 
of  the  same  State.     The  Federalist,  No.  80. 

2  See  case  of  Pawlet  v.  Clark,  9  Cranch,  292,  relating  to  grants 
by  the  States  of  New  York  and  Vermont.  If  the  controversy  is 
founded  upon  the  conflicting  grants  of  different  States,  the  judicial 
power  of  the  courts  of  the  United  States  extends  to  the  case,  what- 
ever may  have  been  the  equitable  title  of  the  parties  prior  to  the 
grant.  See  grants  by  Kentucky  and  Virginia,  in  Colson  v.  Leicis,  2 
Wheat.  377. 

3  The  courts  of  the  United  States  have  jurisdiction  in  a  c 


THE    JUDICIAL    POWER    OF    THE    UNITED   STATES.  335 

These  are  the  characteristics  of  the    parties  lecturk  vii. 
who  may  hrmo-  suits  in  the  various  courts  of  the  between  a  state 

'^  ~  •  or  itsL'Uizt'iis,  and 

United  States,  and  these  are  the  classes  of  cases,  foreign  states  or 
as  well  as  the  nature  of  the  controversies,  wdiich 
come  within  their  jurisdiction.  But  before  this 
could  be  exercised  in  regard  to  the  largest  part 
of  them,  an  act  of  Congress  was  required  to  cre- 
ate the  courts  for  that  purpose.^  Therefore  it 
was  that  immediately  after  the  organization  of 
the  Government,  Congress  did  create  courts, 
define  their  constitution,  and  regulate  their  ad- 
ministration. It  is,  however,  a  noteworthy  fact 
that  up  to  within  a  very  few  years  a  large  body 
of  this  judicial  power,  which  is  within  the  con- 
between  citizens  of  the  same  State  if  the  plaintiffs  are  only  nomi- 
nally plaintiffs  for  the  use  of  an  alien.  Browne  v.  Strode,  5 
Cranch,  308.  It  must  appear  from  the  record  that  the  opposite 
party  is  a  citizen.  Jackson  v.  Twentyman,  2  Pet.  136.  An  In- 
dian tribe  or  nation  located  within  the  United  States  is  not  a  for- 
eign state  within  the  meaning  of  this  clause.  Cherokee  Nation  v. 
Georgia,  5  Pet.  1. 

1  The  great  act,  commonly  called  the  "Judiciary  Act,"  and 
entitled  "  An  Act  to  establish  the  Judicial  Courts  of  the  United 
States,"  passed  September  24,  1789,  1  Stat.  73,  c.  20,  originated  in 
the  Senate.  One  member  of  the  committee  which  reported  it,  Oliver 
Ellsworth,  afterwards  became  a  Chief  Justice  of  the  Supreme 
Court,  and  another  member.  William  Patcrson,  an  Associate  Jus- 
tice of  the  same  court.  Five  of  its  members  had  also  been  deputies 
to  the  convention  which  framed  the  Constitution.  It  may  be  said 
that  the  authors  of  this  act,  as  well  as  the  Congress  which  adopted 
it,  were  adherents  of  the  political  party  which  held  that  it  was  in- 
dispensable to  the  peace  and  unity  of  the  country  that  the  authority 
of  the  Federal  Government  should  be  extended  as  far  as  it  could  be  • 
constitutionally.  So  it  has  been  considered,  and  justly  so,  as  an 
authoritative  and  contemporaneous  exposition  of  the  limits  of  the 
judicial  power  of  the  General  Government.  Chief  Justice  Marshall 
says,  in  Cohens  v.  Virginia,  0  Wheat.  264,  "Congress  seems  to 
have  intended  to  give  its  own  construction  to  this  part  of  the  Con- 
stitution in  the  twenty-fifth  section  of  the  Judiciary  Act,  and  we 
perceive  no  reason  to  depart  from  that  construction." 


66b  LECTUEES    ON    CONSTITUTIONAL    LAW. 

Lecture  VII.      trol  of  Congress  imder  these  provisions  of  the 
between  ii  State    Coiistitution,  Wcis  vestcd  ill  HO  coiirt  at  all,  and 

or  Its  citizens,  ana  -'  .  ^ 

foreign  states  or   consequeiitlj  coiild  iiot  be  exercised  by  a  Fed- 

eitizens.  ,  ,  i 

eral  court. 
Limitations  im-        Limitations  have  also,  from  time  to  time,  been 
gress^^^°"       fixed  by  Congressional  action  upon  the  classes 
of  cases  in  regard  to  which  jurisdiction  has  been 
vested  in  the  courts  of  the  United  States.     At 
the  present  time  this  limitation  is  a  very  large 
one.     For  instance,  no  suit  can  be  brought  in 
those  courts  where  the  amount  in  controversy 
does  not  exceed  two  thousand  dollars  in  value, 
with    the  exception  of   patent,  and  revenue  or 
admiralty  cases,  and  criminal  prosecutions.     In 
regard  to  those  matters  suits  may  be  brought 
without  reference  to  value,  but  in  all  other  ac- 
tions brought  by  a  citizen  of  this  country  the 
amount  in  controversy  must  exceed  this  specified 
limit.^ 
The  Act  of  March      It  was  iiot  Until  Marcli   3,  1875,  that   Con- 
;5, 1875.  gress  finally  passed  a  law  which  authorized  all 

cases  arising  under  the  Constitution,  or  laws  of 
the  United  States,  and  treaties  made  under  their 
authority,  to  be  brought  in  the  Federal  courts, 


1  Congress  may  legislate  authorizing  the  removal  from  State  to 
Federal  courts  of  criminal  as  well  as  civil  cases.  This  has  been 
partially  done.  Act  of  February  4,  1815,  3  Stat.  198,  c.  31,  §  8  ; 
Act  of  March  2,  1833,  4  Stat.  632,  c.  57  ;  March  3,  18G3,  12  Stat, 
755,  c.  81,  §  5  ;  Jidy  13,  186(3,  14  Stat.  171,  c.  18i,  §  67.  This  sub- 
ject was  considered  at  length  in  Tennessee  v.  Davis,  100  U.  S.  257. 

-  It  has  often  been  decided  that  the  sum  in  controversy  in  a 
suit  is  the  damages  claimed  in  the  declaration ;  whether  it  be  an 
original  suit  in  the  Circuit  Court  of  the  United  States,  or  brought 
there  by  petition  from  a  State  court.  Gordon  v.  Longest,  16  Pet. 
97. 


THE    JUDICIAL    POWER    OF    THE    UNITED    STATES. 


thus   giving  them   concurrent   jurisdiction  with  lecture  vii 

The  Ac      ■  ■ ' 
3,  1875. 


the  State  courts.^     Previous  to  that  date,  if  a ..  ® 


party  had  a  right  under  the  Constitution,  the 
laws,  or  treaties,  but  liad  not  the  requisite  citi- 
zenship, he  had  to  first  go  before  a  State  court. 
After  he  liad  carried  his  case  tlirough  all  the 
State  tribunals,  up  to  the  highest,  then  the 
question  which  concerned  the  Federal  jurisdic- 
tion might,  if  it  was  decided  against  him,  be 
brought  l)y  a  writ  of  error  up  to  the  Supreme 
Court  of  the  United  States.  But  that  class  of 
cases  may  now,  by  the  act  of  1875,  be  brought 
originally  in  the  Circuit  Courts  of  the  United 
States. 

These  comments  upon  the  second  section  of 
the  third  article  of  the  Constitution  have  been 
made  before  taking  up  the  first  section,  because 
it  defines  or  marks  out  the  judicial  power  of  the 
United  States  by  providing  to  what  cases  it  may 
extend.  It  is,  therefore,  of  primary  importance 
to  the  student  of  the  legal  principles  upon  wdiich 
our  Government  is  founded. 

The  first  section  provides,  in  its  opening  clause, 
that  this  judicial  power  of  the  United  States, 
which  we  have  been  discussing,  "  shall  be  vested 
in  one    Supreme  Court,^    and  in  such    inferior 


1  An  act  to  determine  the  jurisdiction  of  Circuit  Courts  of  the 
United  States,  ajid  to  regulate  tlie  removal  of  causes  from  State 
courts,  and  for  other  purposes.  Approved  March  3,  1875.  18 
Stat.  470. 

2  The  origin  of  this  provision  is  described  by  Hamilton,  in  the 
Federalist,  No.  81.  He  says  that  contrary  to  the  general  supposi- 
tion of  many  persons  who  represented  it  to  be  novel  and  unpre- 
cedented, it  is  but  a  copy  of  the  constitutions  of  New  Hampshii-e, 


338  LECTURES    ON    CONSTITUTIONAL    LAW. 

lecturk  VII.      courts  as  the  Congress  may,  from  time  to  time, 
The  Act  of  March  ^^,^1^.^  and  establish." 

The  Supreme  There  Can,  therefore,  be  but  one  such  court, 

^''""'  but  one  which  is  supreme.^     The  establishment 

of  that  great  tribunal  is  positively  required  by 
this  provision,  while,  in  that  which  follows,  the 
establishment  of  inferior  courts  is  left  to  the 
discretion  of  Congress. 

The  Supreme  Court,  once  in  existence,  cannot 
be  abolished,  because  its  foundation  is  not  in  an 
act  of  the  legislative  department  of  the  Govern- 
ment, but  in  the  Constitution  of  the  United 
States.^     It   is   true,  an   act    of   Congress  was 

Massachusetts,  Pennsylvania,  Delaware,  Maryland,  Virginia,  North 
Carolina,  South  Carolina,  and  Georgia,  and  he  applauds  the  wisdom 
of  committing  the  judicial  power,  not  to  a  part  of  the  Legislature, 
but  to  distinct  and  independent  bodies  of  men. 

1  The  court  of  errors,  or  of  cassation,  in  France,  is  the  highest 
judicial  tribunal  in  the  kingdom.  The  principle  on  which,  until 
recently,  it  proceeded,  was  this :  If  the  judgment  of  an  inferior 
court  was  reversed,  the  case  was  sent  back  to  be  tried  again.  If 
the  court  below  persisted  in  its  error,  and  the  case  was  again 
appealed,  and  the  court  above  reaffirmed  the  judgment  before  pro- 
nounced, it  was  sent  back  a  second  time.  But  if  the  inferior  court 
still  perseveied  in  its  error,  the  decree  of  the  court  of  cassation  no 
longer  afforded  the  governing  rule.  The  Legislature  was  ihen  ap- 
pealed to  to  settle  the  law  by  a  declaratory  act.  But  the  absurdity 
of  the  scheme,  the  temptation  which  it  held  out  to  the  legal  tribimals 
to  resist  the  judgment  of  the  highest  court,  and  to  unsettle  all  the 
principles  of  law,  produced  so  much  mischief,  that  in  1837  the 
English  and  American  procedure  was  adopted  ;  and  the  determina- 
tion of  the  court  of  cassation  is  now  final,  and  absolutely  binding 
upon  all  other  tribunals.  Grimke  on  Nature  and  Tendency  of  Free 
Institutions,  p.  300  (Cincinnati,  1848). 

2  Chief  Justice  Taney,  in  the  last  judicial  paper  which  he  pre- 
pared, wrote  as  follows:  "The  Supreme  Court  does  not  owe  its 
existence  or  its  powers  to  the  legislative  department  of  the  Gov- 
ernment. It  is  created  by  the  Constitution,  and  represents  one  of 
the  great  divisions  of  power  in  the  Government  of  the  United 
States,  to  each  of  which  the  Constitution  has  assigned  its  appro- 


THE    JUDICIAL    POWER    OF    THE    UNITED    STATES.  339 

necessary  to  define  the  number  of  judges  which  lecture  yii. 
should  constitute  that  court,  as  well  as  to  limit  'j^''"  ^"p*"^™* 

'  _  Court. 

their  jurisdiction  and  provide  for  their  compen- 
sation ;  ^  but  that  once  done,  the  existence  of 
the  court  is  an  established  fact.  It  cannot  be 
abolished,  nor  its  judges  legislated  out  of  exist- 
ence,''^ although  it  has  been  forcibly  urged,  and 


priate  duties  and  powers,  and  made  each  independent  of  the  other 
in  performing  its  approi^riate  functions.  The  power  conferred  on 
this  court  is  exclusively  judicial,  and  it  cannot  be  required  or 
authorized  to  exercise  any  other.  .  .  .  The  existence  of  this  court 
is  therefore  as  essential  to  the  organization  of  the  Government 
established  by  the  Constitution  as  the  election  of  a  President  or 
members  of  Congress.  It  is  the  tribunal  which  is  ultimately  to 
decide  all  judicial  questions  confided  to  the  Government  of  the 
United  States.  No  appeal  is  given  from  its  decisions,  nor  any 
power  given  to  the  legislative  or  executive  departments  to  interfere 
with  its  judgments  or  process  of  execution."  Gordon  v.  United 
States,  117  U.  S.  (Appendix),  699,  700. 

1  The  act  approved  April  29, 1802,  2  Stat.  156,  made  the  Supreme 
Court  to  consist  of  a  Chief  Justice  and  six  Associates,  which  num- 
ber was  increased  to  eight  by  an  act  approved  March  3,  1837,  5  Stat. 
176,  c.  34.     Rev.  Stat.  sec.  673. 

2  Animadverting  upon  the  great  power  of  the  Supreme  Court, 
Mr.  Van  Buren  said  in  the  Senate  in  1820:  "  It  has  been  justly 
observed  that  there  exists  not  upon  this  earth,  and  there  never  did 
exist,  a  judicial  tribunal  clothed  with  powers  so  various  and  so 
important  as  the  Supreme  Court.  .  .  .  Not  only  are  the  acts  of 
the  national  Legislature  subject  to  its  review,  but  it  stands  as  the 
umpire  between  the  conflicting  powers  of  the  General  and  State 
governments.  That  wide  fiield  of  debatable  ground  between  those 
rival  powers  is  claimed  to  be  subject  to  the  exclusive  and  absolute 
dominion  of  the  Supreme  Court.  ...  In  virtue  of  this  power,  we 
have  seen  it  holding  for  naught  the  statutes  of  powerful  States, 
which  had  received  the  deliberate  sanction,  not  only  of  their  Legis- 
latures, but  their  highest  judicatories,  composed  of  men  venerable 
in  years,  of  unsullied  purity,  and  unrivalled  talents  —  statutes 
on  the  faith  of  which  immense  estates  had  been  invested,  and  the 
inheritance  of  the  widow  and  the  orphan  were  suspended.  You 
have  seen  sxach  statutes  abrogated  by  the  decision  of  this  court, 
and  those  who  had  confided  in  the  wisdom  and  power  of  the  State 
authorities    plunged  in    irremediable    ruin,  —  decisions    final    in 


340  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  VII.      probablj  witli  truth,  that  all  the  other  courts 
Tho!  Supreme  |^     legislative  act,  be  abolished,  and  their 

Court.  '      v'         o  '  ' 

powers  conferred  on  other  courts,  or  subdivided 
in  different  modes. 
Judges  hold  oflice  The  concludiiig  clausc  of  the  first  section  fixes 
havio?.°°"  ^'  ^till  more  clearly  the  status  of  these  judicial 
ofhcers.  "  Tlie  judges,  both  of  the  Supreme 
and  inferior  courts,  shall  hold  their  offices  dur- 
ing good  behavior,  and  shall,  at  stated  times, 
receive  for  their  services  a  compensation,  which 
shall  not  be  diminished  during  their  continuance 
in  office.^ 

The  judges  of  the  Supreme  Court,  as  we  have 
just  seen,  cannot  be  legislated  out  of  office, 
whatever  mio;ht  be  the  result  as  to  the  other 
judges  of  the  United  States  if  the  inferior  courts 

their  effect  and  ruinous  in  their  conse(iuences.  I  speak  of  the 
power  of  the  court,  not  of  tlie  correctness  or  incorrectness  of  its 
decisions.     With  that  we  have  nothing  to  do. 

But  this  is  not  all.  It  not  only  sits  in  final  judgment  upon  our 
acts,  as  the  highest  legislative  body  known  to  the  country  —  it  not 
only  claims  to  be  the  final  arbiter  between  the  Federal  and  State 
governments,  but  it  exercises  the  same  great  power  between  the 
respective  States  forming  the  great  confederacy  and  their  own  citi- 
zens. .  .  .  Add  to  the  immense  powers  of  which  I  have  spoken 
[the  regulation  of  commerce  and  tlie  power  to  determine  the 
validity  of  all  legislative  acts]  those  of  expounding  treaties,  .  .  . 
of  deciding  controversies  between  the  States  and  the  citizens  of  the 
different  States  ;  and  the  justice  of  the  remark  will  not  be  ques- 
tioned, that  there  is  no  known  judicial  power  so  transcendently 
omnipotent  as  that  of  the  Supreme  Court  of  the  United  States." 
4  Elliot's  Debates,  485. 

1  Chief  Justice  Taney  wrote  a  letter  dated  February  15,  1863, 
in  which  the  position  was  taken  that  the  act  of  Congress  which 
imposed  a  tax  of  three  per  cent,  so  far  as  it  applied  to  the  judges 
of  the  Supreme  Court,  was  an  unconstitutional  diminution  of  their 
salaries  ;  and  that  they  could  not  be  diminished  by  taxation  or  other- 
wise. This  letter  was  ordei-ed  by  the  court  on  the  10th  of  March, 
1863,  to  be  recorded  in  its  minutes.    Tyler's  Life  of  Taney,  432. 


THE    JUDICIAL    POWER    OF    THE    UNITED    STATES.  341 

were  abolished.     None  of  these  officers  shall  be  Lecture  vil 
removed  diiriiitr  good    behavior,  nor  when  the '!"*^P** ''"''!  ?  ''* 

^     c?  '  during  good  b©- 

Legishiture   lias  once  fixed  their  compensation,  bavior. 
can   it   be   diminished  during   the   term  of  the 
judge  then  in  office.^ 

There  is  an  obvious  reason  for  that.  As  has 
been  before  remarked,  the  judicial  branch  of  the 
Government    is    the    weakest    of   all.^      It    has 

1  Marshall  said  iu  the  Virguiia  Convention  of  1820  :  "The  judi- 
cial department  conies  home  in  its  effects  to  every  man's  fireside  ; 
it  passes  on  his  property,  his  reputation,  his  life,  his  all.  Is  it  not 
to  the  last  degree  important  that  he  should  be  rendered  perfectly 
and  completely  independent,  with  nothing  to  control  him  but  God 
and  his  conscience  ?  I  have  always  thought,  from  my  earliest 
"youth  till  now,  that  the  greatest  scourge  an  angry  heaven  ever 
inflicted  upon  an  ungrateful  and  a  sinning  people  was  an  ignorant, 
a  corrupt,  or  a  dependent  judiciary." 

'•In  the  general  course  of  human  nature,  a  power  over  a  man's 
subsistence  amounts  to  a  power  over  his  will."  The  Federalist, 
No.  79. 

2  The  author  of  the  Federalist,  No.  78,  quotes  this  sentiment  in 
the  strong  language  of  Montesquieu  :  "Of  the  three  powers  [the 
legislative,  executive,  and  judicial],  the  judiciary  is  next  to  noth- 
ing." Spirit  of  Laws,  vol.  1,  p.  186.  He  proceeds  to  say  that  the 
judiciary  has  no  influence  over  either  the  sword  or  purse  ;  no  direc- 
tion either  of  the  strength  or  of  the  wealth  of  society,  and  can  take 
no  active  resolution  whatever  ;  and  that  it  is  incontestably  the 
weakest  of  the  three  departments  of  power  ;  that  it  can  never 
attack  with  success  either  of  the  other  twOj  and  that  all  possible 
care  is  requisite  to  enable  it  to  defend  itself  against  their  attacks. 

"  While  by  the  Constitution  the  judicial  department  is  recog- 
nized as  one  of  the  three  great  branches  among  which  all  the  powers 
and  functions  of  the  Government  are  distributed,  it  is  inherently 
the  weakest  of  them  all.  Dependent  as  its  courts  are  for  the  en- 
forcement of  their  judgments  upon  officers  appointed  by  the  Execu- 
tive and  removable  at  his  pleasure,  with  no  patronage  and  no  control 
of  the  purse  or  the  sword,  their  power  and  influence  rest  solely  upon 
the  public  sense  of  the  necessity  of  the  existence  of  a  tribunal  to 
which  all  may  appeal  for  the  assertion  and  the  protection  of  rights 
guaranteed  by  the  Constitution,  and  by  the  laws  of  the  land,  and  on 
the  confidence  reposed  in  the  soundness  of  their  decisions  and  the 
purity  of  their  motives."     United  States  v.  Lee,  100  U.  S.  190,  223. 


342  LECTURES    ON    CONSTITUTIONAL    LAW. 

lecttjrk  VII.  neither  the  purse  nor  the  sword.  It  is  depend- 
durhig  good  be-"^^  ^^^  upon  annual  appropriations  for  the  bread 
havior.  upon    whicli    its   judges    live.     The    courts    are 

dependent  upon  the  President  to  furnish  mar- 
shals to  execute  their  decrees.  If,  then,  they 
are  to  administer  the  Constitution  according  to 
its  true  spirit,  as  the  protectors  and  guardians 
of  the  weak  against  the  strong,  and  to  uphold 
the  rig:hteous  cause  ao;ainst  the  encroachments  of 
injustice,  they  must  be  shielded  by  guarantees  of 
the  needful  independence  in  order  that  they  may 
act  impartially.^  The  makers  of  this  wonderful 
instrument  which  we  are  considering,  were  per- 
fectly aware  of  the  waves  of  passion  which  fre- 
quently run  through  the  legislative  and  executive 
branches  of  the  Government.  They  knew  that 
these  judicial  bodies  would  be  called  upon  occa- 
sionally to  point  out  what  the  Constitution 
means ;  that  it  might  even  become  necessary  to 
declare  that  certain  enactments  of  Congress 
were  void  and  of  no  effect,  because  they  were 

1  Mr.  Justice  Johnson  remarked,  in  the  case  of  Martin  v.  Hun- 
ter's Lessee,  1  Wheat.  304,  381,  "  God  forbid  that  the  judicial  power 
in  these  States  should  ever,  for  a  moment,  even  in  its  humblest 
departments,  feel  a  doubt  of  its  own  independence." 

And  Hamilton  says  in  the  Federalist,  No.  78,  "The  complete 
independence  of  the  courts  of  justice  is  peculiarly  essential  in  a 
limited  constitution." 

2  u  This  principle,  which  has  been  the  subject  of  so  much  deserved 
eulogy,  vras  derived  from  the  English  constitution.  The  English 
judges  anciently  held  their  seats  at  the  pleasufe  of  the  king,  and 
so  does  the  lord  chancellor  to  this  day.  It  is  easy  to  perceive  what 
a  dangerous  influence  this  must  have  given  to  the  king  in  the 
administration  of  justice,  in  cases  where  the  claims  or  pretensions 
of  the  crown  were  brought  to  bear  upon  the  rights  of  a  private  indi- 
vidual. .  .  .  The  Act  of  Settlement  of  12  and  13  Wm.  III.  c.  2, 
established  the  commissions  of  the  judges  quamdiu  se  bene  gesse- 


THE   JUDICIAL    POWER    OF    THE    UNITED    STATES.  343 

unconstitutional,''^  and  that  they  might  thus  pro-  lecture  vii. 

1  •       1        .     1        .'Ti  1  1  •      T         Judges  hold  office 

voke  vn-ulent  hostihty  and  popmar  P»'^'j<^idice.  j^j.i,,gg^Qjjij^. 
So  they  said  that  their  salaries  should  not  be  bavior. 
diminished,  because  they  were  not  in  accord 
with  the  legislative  or  executive  departments 
of  the  Government,  or  in  sympathy  Avith  the 
prevalent  currents  of  popular  feeling  in  the  com- 
munity. And  they  went  further  and  said  also 
that  these  judges  should  not  be  turned  out  of 
office,  but  should  remain  as  long  as  they  lived, 
provided  they  behaved  themselves.^ 

I  am  not  going  to  discuss  now  the  question 
of  how  well  they  have  behaved.  Their  opinions 
and  actions  have  become  a  part  of  the  public 
history  of  this  great  land.  If  they  are  guilty 
of  misconduct  the  same  instrument  which  pro- 

rint.  The  excellence  of  this  provision  has  recommended  the  adop- 
tion of  it  by  other  nations  of  Europe."     1  Kent  Com.  292,  293. 

The  Americans  have  acknowledged  the  right  of  judges  to  found 
their  decisions  on  the  Constitution,  rather  than  on  the  laws.  In 
other  words,  they  have  left  thera  at  liberty  not  to  apply  such  laws 
as  may  appear  to  them  to  be  unconstitutional.  I  am  aware  that  a 
similar  right  has  been  claimed,  but  claimed  in  vain,  by  courts  of 
justice  in  other  countries  ;  but  in  America  it  is  recognized  by  all 
the  authorities.     De  Tocqueville,  vol.  1,  p.  80,  (ed.  1838,  N.  Y.). 

"  There  is  no  position  which  depends  on  clearer  principles,  than 
that  every  act  of  a  delegated  authority,  contrary  to  the  tenor  of  the 
commission  under  which  it  is  exercised,  is  void.  No  legislative  act, 
therefore,  contrary  to  the  Constitution,  can  be  valid."  The  Feder- 
alist, No.  78. 

1  A  most  ancient  precedent  in  favor  of  the  establishment  of 
an  independent  judiciary  is  the  statute  of  Alfonso  V  of  Aragon,  in 
1442,  providing  they  should  continue  in  office  during  life,  removable 
only  on  sufficient  cause  by  the  king  and  Cortes  united.  Prescott's 
History  of  Ferdinand  and  Isabella,  vol.  1,  p.  108.  Introduction, 
sec.  2,  p.  74  (5th  ed.  London,  1849). 

And  it  is  the  best  expedient  which  can  be  devised  in  any  gov- 
emment  to  secure  the  steady,  upright,  and  impartial  administration 
of  the  laws.    The  Federalist,  No.  78. 


344  LECTURES    ON    CONSTITUTIONAL    LAW. 

lectiuk  VII.      tects  them  in  the  proper  administration  of  their 
Judges  hold  office  (]^^igg    provides  tlie  means   by  which  the  per- 

during  good  be-  ^    ^  .  .         ,         . 

havior.  sonal  responsibility  for  their  misbehavior  may  be 

brought  home  to  them.  The  only  mode  for 
determining  that  is  by  impeachment.  If  fomid 
guilty  they  may  be  removed  from  office,  and 
thenceforth  disqualified  to  hold  or  enjoy  any 
office  of  honor,  trust,  or  profit  under  the  United 
States.  One  judge  of  the  Supreme  Court  of  the 
United  States  went  through  that  process,  but  he 
came  out  unhurt.^ 
Original  juris-  Wc  liavc  tlius  far  only  considered  the  first 

diction  of  the       paragraph  of  the  second  section.     We  come  now 

Supreme  Court,      x  o      i  •  i  i 

to  the  second  paragraph,  which  provides  that 
"  in  all  cases  affecting  ambassadors,  other  public 
ministers,  and  consuls,  and  those  in  which  a 
State  shall  be  a  party,  the  Supreme  Court  shall 
have  original  jurisdiction."  ^ 

That  is  to  say,  there  are  some  classes  of  cases 
where  a  litigant  need  not  go  through  the  forms 
of  the  lower  courts ;  it  is  not  necessary  that  his 
claim  or  right  be  passed  upon  by  the  District  or 
Circuit  Courts,  or  any  other  tribunal ;  but  if  he 

1  Samuel  Chase,  appointed  by  President  Washington  an  Asso- 
ciate Justice  of  the  Supreme  Court  in  1796,  was  impeaclied  in  1804, 
at  the  instigation  of  John  Randolph,  for  various  alleged  arbitrary, 
oppressive,  and  unjust  acts  and  conduct  on  the  bench.  [Trial, 
vol.  1,  pp.  25-10:1.]  He  was  arraigned  in  1805,  but  was  acquitted 
after  a  long  trial.  He  died  June  19,  1811.  See  Lanman's  Biog. 
Annals  ;  Trial  of  Judge  Chase  ;  Annals  of  8th  Congress,  2d  Session, 
pp.  81-076. 

2  The  Supreme  Court  has  original  jurisdiction  only  in  the  two 
classes  of  cases  mentioned  in  this  clause.  The  appellate  jurisdic- 
tion extends  to  all  other  cases  within  the  judicial  power  of  the 
United  States.  See  cases  reviewed  in  Ex  parte  Yerger,  8  Wall. 
85,  95. 


TUE    JUDICIAL    POWER    OF    THE  UNITED    STATES.  345 

be  an  ambassador,  a  public  minister,  or  consul,  lecturk  vii. 
or  if  a  State  be  a  party  (provided  it  be  in  the  ^.T'""' J"''"" 

■i  ./     M  diction  of  the 

capacity   of   plaintili",   unless    sued    by   another  Supreme  court. 

State),  then  the  action  may  be  brought  at  once 

in  the  Supreme  Court  of  the  United  States  in 

its  original  jurisdiction.     Of  course  these  classes 

of  persons  are  not  very  large,  nor  will  the  cases 

in  which  a  State  is  a  party  ever  be  very  great, 

so  that  the  number  of  suits  coming  within  the 

original  jurisdiction  of  that  court   has  always 

been  and  will  always  continue  to  be  very  small. 

It  never   amounts  to  more  than   eight  or  ten 

cases  upon  the  docket  of  any  one  term. 

The  word  ''original"  does  not  appear  else- 
where in  the  Constitution,  and  is  used  in  this 
clause  in  contradistinction  to  what  is  termed  its 
"  appellate  "  jurisdiction.  Under  the  latter  head 
comes  the  great  mass  of  cases  to  which  the  power 
of  the  Federal  Government  extends.  The  con- 
cluding clause  of  the  paragraph  is  as  follows  : 
"In  all  the  other  cases  before  mentioned,  the 
Supreme  Court  shall  have  appellate  jurisdiction, 
both  as  to  law  and  fact,  with  such  exceptions, 
and  under  such  regulations,  as  the  Congress 
shall  make." 

The    Congress,    therefore,    can    control    very  its  appellate 
largely  the  appellate  jurisdiction  of  the  United  J>^isdiction. 
States  Supreme  Court.     It  has  done  so,  by  pass- 
ing laws  at  various  times  regulating  that  juris- 
diction.^    One  of  its  earliest  enactments  upon 

^  It  is  essential  to  the  jurisdiction  of  the  Supreme  Court  of  the 
United  States  over  the  judgment  or  decree  of  a  State  court,  that  it 
shall  appear  that  one  of  the  questions  meutioued  in  the  statute 


346 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  VII. 
Its  appellate 
jurisdictiou. 


tlie  subject  was,  that  no  ordinary  suit  between 
individuals  could  come  to  the  .Supreme  Court 
for  revision  unless  the  amount  involved  was 
over  two  thousand  dollars.  It  is  now  five  thou- 
sand dollars,  and  it  has  been  urged  that  this 
should  be  enlarged  to  ten  or  twenty  thousand 
dollars,  either  by  the  creation  of  some  inter- 
mediate appellate  tribunal,  or  otherwise.  This 
is  proposed  in  order  that  the  Supreme  Court 
may  be  relieved  from  the  consideration  of  a 
great  number  of  less  important  matters  which 
are  brought  to  its  attention,  and  so  that  only 
cases  involving  great  amounts,  as  well  as  certain 
other  cases  where  the  Constitution  of  the  United 
States  is  involved,  or  where  there  is  a  conflict 
between  State  and  Federal  authority,  shall  go  up 
to  that  court  under  the  head  of  its  appellate 
jurisdiction.^ 

The  third  paragraph  of  the  second  section 
provides  that  "  the  trial  of  all  crimes,  except  in 
cases  of  impeachment,  shall  be  by  jury,"  and 
concludes  by  directing  where  such  trial  shall  be 
held.  This  subject  will  be  more  appropriately 
treated  in  some  observations  which  will  be  made 
concerning  the   system   of  trial  by  jury.     The 


must  have  been  raised  and  presented  to  the  State  court ;  that  it 
must  have  been  decided  by  the  State  court  against  the  riglit  claimed 
or  asserted  by  tlie  plaintiff  in  error,  under  tlie  Constitution,  treaties, 
laws,  or  autliority  of  the  United  States,  or  tliat  such  a  decision 
vv^as  necessary  to  the  judgment  or  decree  rendered  in  the  case. 
Murdock  v.  City  of  Memphis,  20  Wall.  500. 

^  The  jurisdiction  does  not  depend  u^Don  tlie  amount  of  any  con- 
tingent loss  or  damage  which  one  of  the  parties  may  sustain  by  the 
decision  against  him,  but  by  the  amount  in  dispute  between  them. 
lioiss  V.  Prentiss.  3  How.  771. 


THE   JUDICIAL    POWER    OF    THE    UNITED   STATES.  347 

cases     in    which    impeachment    is   the    proper  lkctukk  vii. 
method  of  procedure  is  also  separately  consid-  .•|,^risIifctiou*' 
ered  under  its  appropriate  head. 

The  third  and  last  section  of  Article  III  is 
devoted  to  defining  what  is  treason,  and  point- 
ing out  certain  restrictions  upon  the  power  of 
the  courts  to  convict  of  that  offence.  Congress 
is  given  the  power  to  declare  what  punishment 
shall  be  meted  out  to  the  offender,  "but  no 
attamder  of  treason  shall  work  corruption  of 
blood,  or  forfeiture,  except  during  the  life  of  the 
person  attainted."  This  subject  will  also  be 
more  appropriately  considered  in  connection  with 
others  of  the  same  general  character. 

It  will  thus  be  seen  that  the  Constitution  of  The  courts  are 
the  United  States  has  created  a  judicial  depart-  payment  of  the 
ment  of  this   Government  as  one  of  its  three  Ooverumeut. 
great  branches,  to  which  it  has  exclusively  dele- 
gated all  judicial  power,^  with  the  exception  of 
the  trial  of  impeachments.     It  prescribes  with 
wonderful    clearness  the   classes  and    kinds   of 
suits  which  may  be  brought  before  it ;  it  defines 
the  persons  who  are  privileged  to  sue,  either  in 
its  highest  forum  or  in  its  lower  grades,  and 
marks  out  the  method  in  which  trials  are  to  be 
had. 

To  this  department  is  confided  the  judicial 
power  of  the  Government.^     It  is  perhaps  true 

1  In  cases  arising  during  the  reconstruction  period,  the  extent 
and  essential  character  of  tlie  judicial  power,  and  its  relation  to  the 
legislative  and  executive  functions  of  the  Goveninient,  were  dis- 
cussed at  length.  Georgia  v.  Stanton,  G  Wall.  50  ;  United  States 
V.  Lee,  106  U.  S.  196. 

2  The  judicial  power  of  the  United  States,  considered  with  ref- 


348  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkcture  VII.      that  the  lines  which  separate  the  legislative  and 
The  courts  are      ^j^^  uidicial  Dower  are  sometimes  not  very  clearly 

the  judicial  de-  j  i  ^  d  j 

partmcnt  of  the    defined,  but  they  are  becoming  more  and  more 

(Government.  rni      i    •  "T'i  i*1"  l 

Deiinitionof  "ju-  ^*^-  -^ hat  IS  a  jiidicial  power  Avhich,  in  a  coiitro- 
diciai  power."  vcrsy,  dccidcs  the  right  to  property  between 
citizens  or  proper  parties.  Such  a  determina- 
tion is  not  a  legislative  power.  If  a  legislature, 
or  at  least  such  a  body  acting  within  the  do- 
minion of  the  Government  of  the  United  States, 
should  undertake  to  declare  that  certain  prop- 
erty which  belonged  to  A  should  become  the 
property  of  B,  it  would  be  an  invasion  of  the 
judicial  function,  and  therefore  wholly  inopera- 
tive and  void.^  No  court  would  hesitate  to  de- 
clare that  such  a  determination  was  within  the 
province  of  the  courts  alone ;  that  the  legislature 
could  not  effect  it,  because  of  this  separation  of 
the  judicial  and  legislative  powers  which  is  made 
by  the  Constitution.^ 


2 


erence  to  its  adaptation  to  the  purposes  of  its  creation,  is  one  of 
the  most  admirable  and  felicitous  structures  that  human  govern- 
ments have  exhibited.     Curtis'  Constitution. 

1  There  is  nothing  in  the  Constitution  of  the  United  States 
which  forbids  the  legislature  of  a  State  to  exercise  judicial  func- 
tions. Satterlee  v.  Matthewson,  2  Pet.  413.  A  legislature  cannot, 
however,  declare  what  the  law  was,  but  what  it  shall  be.  —  Ogden 
V.  Wackledge,  2  Cranch,  272. 

A  resolution  by  the  legislature  of  Tennessee,  that  a  criminal 
should  be  discharged  by  a  court,  was  held  to  be  an  unwarranted 
assumption  of  power  on  the  part  of  the  legislature,  and  void. 
State  V.  Fleming,  7  Humphreys,  152. 

The  legislature  cannot  gi-ant  a  new  trial,  ol-  direct  the  court  to 
order  it.     De  Chastellvx  v.  Fairchild,  15  Penn.  St.  18. 

2  The  power  vested  in  the  American  courts  of  justice  of  pro- 
nouncing a  statute  to  be  unconstitutional,  forms  one  of  the  most 
powerful  barriers  which  has  ever  been  devised  against  the  tyranny 
of  political  assemblies.  De  Tocqueville,  Dem.  in  America,  vol.  1, 
p.  83  (ed.  N.  Y.)  1838. 


TUE    JUDICIAL    POWER    OF    THE    UNITED    STATES.  349 

It  is  true  that  the  Executive  may,  under  cer-  lectdrk  vii. 
tain  circumstances,  invade  the  personal  riglits  of  ^^"'"-'"''' *^'"^'"*- 
the  individual,  as  regards  his  liberty.  It  has 
been  dune  in  cases  of  emergency ;  it  may  be 
done  again.  The  privilege  of  the  writ  of  habeas 
corjyus  may  be  suspended,  when,  in  cases  of 
rebellion  or  invasion,  the  public  safety  may  re- 
quire it.  The  President,  or  the  executive  officers, 
may  order  a  man  into  imprisonment,  provided 
the  necessity  of  the  case  warrants  such  action. 
But  in  all  these  cases  they  are  bound  to  be  care- 
ful to    exercise    their   power   within    the   law.^ 

The  highest  judicial  power  in  England  is  subordinate  to  the  leg- 
islative power,  and  bound  to  obey  any  law  that  Parliament  may 
pass,  although  it  may,  in  the  opinion  of  the  court,  be  in  conflict 
with  the  principles  of  Magna  Charta  or  the  Petition  of  Rights. 
Taney,  C.  J.,  in  Gordon  v.  United  States,  117  U.  S.  699. 

But  in  the  United  States,  if  a  legislative  act  oppugns  a  constitu- 
tional principle,  the  fonner  must  give  way,  and  be  rejected  on  the 
score  of  repugnance.  In  such  case  it  will  be  the  duty  of  the  court 
to  adhere  to  the  Constitution,  and  to  declare  the  act  null  and  void. 
The  Constitution  is  the  basis  of  legislative  authority  ;  it  lies  at  the 
foundation  of  all  law,  and  is  a  rule  and  commission  by  which  both 
legislators  and  judges  are  to  proceed.  Vunhorn''s  Lessees  v.  Dor- 
rance,  2  Dall.  .304. 

^  The  provisions  in  the  constitutions  and  laws  of  the  various 
States  by  which  the  right  to  the  writ  of  habeas  coiinis  has  been 
secured  to  the  people,  incorporated  the  substance  of  the  famous  act 
of  31  Car.  II,  c.  2,  which  has  frequently  been  termed  the  second 
Magna  Charta  of  Great  Britain.  The  right  to  suspend  this  writ  in 
the  United  States  is  expressly  confined  to  cases  of  rebellion  or  inva- 
sion, where  the  public  safety  may  require  it.  Mr.  .lefferson  was 
opposed  to  the  suspension  in  any  case  whatever  of  the  "  eternal 
and  unremitting  force  of  the  habeas  corpus  laws." 

This  subject  was  earnestly  debated  during  the  late  civil  war,  but 
very  few  cases  were  ever  brought  to  the  attention  of  the  courts. 
Perhaps  the  most  important  was  Ex  parte  3Ierr>jinan,  Taney's, 
C.  Ct.,  Decisions,  246.  Merryman  was  arrested  May  26,  1861,  in 
the  State  of  Maryland  by  a  military  force  acting  under  the  orders 
of  General  Cadwallader  and  confined  in  Fort  McHenry.  Chief 
Justice  Taney,  sitting  at  chambers,  issued  a  writ  of  habeas  corpus. 


350  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkcture  VII.  Whenever  they  act  arbitrarily,  and  thus  infringe 
a  eascojpus.  ^j^^  rights  of  any  man  by  creating  a  law  for 
themselves,  in  violation  of  the  restrictions  which 
both  the  Constitution  and  the  laws  have  thrown 
around  private  rights,  they  invade  the  judicial 
functions  and  powers  of  the  United  States,  and 
the  courts  will  set  that  man  at  liberty,  if  their 
mandates  are  observed.^ 


but  the  officer  to  whom  it  was  directed  refused  to  produce  the 
petitioner  on  the  ground  that  he  had  been  arrested  for  treason,  and 
that  the  President  of  the  United  States  had  suspended  the  writ  for 
the  pubHc  safety.  Chief  Justice  Taney  simply  filed  his  opinion, 
holding  the  petitioner  entitled  to  be  set  at  liberty,  on  the  ground 
that  Congress  was  the  only  power  that  could  authorize  a  suspension 
of  the  privilege  of  the  writ,  and  issued  an  attachment  which  the 
officers  in  charge  of  the  fort  would  not  permit  to  be  served. 

It  was  with  the  tacit  consent  or  permission  of  Congress  that  the 
power  was  exercised  during  the  rebellion  by  the  President  to  sus- 
pend the  action  of  this  writ.  March  3,  1863,  Congress,  however, 
determined  to  definitely  regulate  the  matter,  and  passed  an  act 
which,  among  other  things,  gave  the  President  the  right,  during  the 
existing  rebellion,  to  suspend  the  writ,  whenever  in  his  judgment 
the  public  safety  might  require  it.     12  Stat.  755. 

1  The  constitutional  provision  that  no  person  shall  be  deprived 
of  life,  liberty  or  property  without  due  process  of  law,  nor  private 
property  be  taken  for  public  use  without  just  compensation,  relates 
to  those  rights  whose  protection  is  peculiarly  within  the  province  of 
the  judicial  branch  of  the  Government.  See  examination  of  cases, 
showing  that  the  courts  extend  protection  when  the  rights  of  prop- 
erty are  unlawfully  invaded  by  public  officers.  United  States  v. 
Lee,  106  U.  S.  196. 


NOTES   UPON   LECTURE   VII. 


Following  the  example  set  by  Mr.  Justice  lectukb  vn. 
Miller  in  this  lecture,  I  will  first  consider  some 
general  subjects,  applicable  alike  to  all  cases 
arising  under  any  grant  of  judicial  power,  and 
then  consider  each  grant  separately,  so  far  as 
may  be  advisable  after  the  full  treatment  of 
these  subjects  in  the  lecture. 

1.   Courts  are  created  for  Judicial  Purjooses  only. 

The  purpose  of  the  f  raraers  of  the  Constitu-  Attempts  to  im- 
tion  to  divide    the  powers  of   the  Government  H"  "°""-""^'f'*^ 

A  duties  upon  the 

into  three  branches,  executive,  legislative,  and  eoum. 
judicial,  might  have  been  frustrated,  so  far  as 
the  judiciary  were  concerned,  but  for  its  power 
to  protect  itself  by  pronouncing  any  law  impos- 
ing other  duties  upon  it,  to  be  an  infringement 
of  its  constitutional  rights. 

As  early  as  1792  Congress  made  such  an 
attempt.  The  Judiciary  Act  of  1789  had  gone 
into  effect,  the  districts  and  circuits  had  been 
created,  the  judges  had  been  appointed,  and  the 
new  courts  found  themselves  with  little  to  do. 
On  the  23d  of  March,  1792,  Congress  enacted  a 
law  "  to  provide  for  the  settlement  of  the  claims 
of  widows  and  orphans  barred  by  the  limitations 

351 


courts. 


352  LECTURES    ON    CONSTITUTIONAL    LAW. 

i.ECTURK  VII.      heretofore  established,  and  to  regulate  the  claims 
Auemi.tst«im-    ^^  i,^^^\i^  pensions."  ^ 

pose  non-jtidicial  ^ 

duties  upon  the  Tliis  act  imposed  upon  courts  of  the  United 
States  the  duty  of  hearing  applications  for  pen- 
sions, and  of  deciding  whether  the  applicant 
should  be  put  upon  the  list.  It  made  a  Pension 
Bureau  of  a  court  that  was  practically  without 
judicial  employment. 

The  Circuit  Court  for  the  District  of  New 
York,  consisting  of  Chief  Justice  Jay,  Mr.  Jus- 
tice Cushing,  and  Judge  Duane,  the  District 
Judge,  on  the  5th  of  the  following  April,  after 
consideration,  unanimously  held  :  — 

"  That,  by  the  Constitution  of  the  United 
States,  the  Government  thereof  is  divided  into 
three  distinct  and  independent  branches,  and 
that  it  is  the  duty  of  each  to  abstain  from, 
and  to  oppose,  encroachments  on  the  other ; 
that  neither  the  legislative  nor  the  executive 
branches  can  constitutionally  assign  to  the  judi- 
cial any  duties  but  such  as  are  properly  judicial, 
and  to  be  performed  in  a  judicial  manner ;  and 
that  the  duties  assigned  to  this  circuit,  by  this 
act,  are  not  of  that  description,  and  that  the  act 
itself  does  not  appear  to  contemplate  them  as 
such,  inasmuch  as  it  subjects  the  decisions  of 
these  courts,  made  pursuant  to  those  duties,  first 
to  the  consideration  and  suspension  of  the  Sec- 
retary at  War,  and  then  to  the  revision  of 
the  Legislature ;  whereas,  by  the  Constitution 
neither  the    Secretary   at  War.   nor  any  other 

1  1  Stat.  243,  c.  11. 


NOTES    UPON    LECTURE    VII.  S-'iS 

executive  officer,  nor  even  the  Legislature,  are  lecturk  vii. 

,A        •       1    ,         •,  L      r  J.^        '     ^'    Attempts  to  irn- 

authorizecl  to  sit  as  a  court  ot  errors  on  the  jucli-p^^^  non-jiwiiciai 
cial  acts  or  opinions  of  this  court."     They  held,  duties  upon  the 
however,  that  they  could  proceed  as  commission- 
ers to  perform  these  duties. 

In  the  District  of  Pennsylvania,  the  Circuit 
Court,  consisting  of  Justices  Wilson  and  Blair  of 
the  Supreme  Court,  and  Judge  Peters  of  the  Dis- 
trict Court,  on  the  IStli  April,  1792,  addressed  a 
letter  to  the  President,  declining  to  proceed : 
"  1st,  because  the  business  directed  by  this  act 
is  not  of  a  judicial  nature."  "  2d,  because,  if 
upon  that  business  the  court  had  proceeded,  its 
judgments  (for  its  opinions  are  its  judgments) 
might,  under  the  same  act  be  revised  and  con- 
trolled by  the  Legislature,  and  by  an  officer  in 
the  executive  department." 

Mr.  Justice  Iredell  and  Judge  Sitgreaves, 
District  Judge  of  North  Carolina,  sitting  in  Cir- 
cuit Court,  addressed  a  letter  from  that  circuit 
to  the  President  on  the  8th  of  June,  1792,  set- 
ting forth  substantially  the  same  thing.^ 

On  the  17th  of  February,  1794,  the  question 
came  before  the  Supreme  Court  in  a  case  which 
was  not  reported  at  the  time,  but  which  was 
made  the  subject  of  a  note,  subsequently  prepared 
by  Mr.  Chief  Justice  Taney,  and  inserted  at  the 
end  of  United  States  v.  Ferreira"^  by  his  direction.^ 

This  case  was  heard  in  circuit  at  New  Haven, 
on  May  3,  1792,  before  Chief  Justice  Jay,  Mr. 

J  Haybttrn's  Case,  2  Dall.  408  ;  409,  note. 

2  13  How.  40. 

*  United  States  v.  Yale  Todd,  13  How.  52,.  note. 


courts. 


854  LECTUKES    ON    CONSTITUTIONAL    LAW. 

i>ROTiinK  VII.      Justice   Gushing,  and  Judge  Law,  the  District 
Attempts  ,oi,u-    j^  rpj        adhcrcd  to  the  decision  of  the 

pose  iioii-jiKlieiai  o  'J 

duties  upou  the  Circuit  Court  of  Ncw  York,  except  that,  on 
reflection,  they  did  not  think  they  could  act  out 
of  court  as  commissioners. 

Chief  Justice  Taney,  in  his  note,  sums  up  the 
result  of  all  the  opinions  as  follows  :  — 

"  1.  That  the  power  proposed  to  be  conferred 
on  the  Circuit  Courts  of  the  United  States,  by 
the  act  of  1792,  was  not  judicial  power  within 
the  meaning  of  the  Constitution,  and  was,  there- 
fore, unconstitutional,  and  could  not  lawfully  be 
exercised  by  the  courts  : 

"  2.  That  as  the  act  of  Congress  intended  to 
confer  the  power  on  the  courts  as  a  judicial 
function,  it  could  not  be  construed  as  an  authority 
to  the  judges  composing  the  court  to  exercise 
the  power  out  of  court  as  commissioners  : 

"  3.  That  money  paid  under  a  certificate  from 
persons,  not  authorized  by  law  to  give  it,  might 
be  recovered  back  by  the  United  States." 

He  further  adds :  "In  the  early  days  of  the 
Government,  the  right  of  Congress  to  give  orig- 
inal jurisdiction  to  the  Supreme  Court,  in  cases 
not  enumerated  in  the  Constitution,  was  main- 
tained by  many  jurists,  and  seems  to  have  been 
entertained  by  the  learned  judges  who  decided 
Todd's  Case.  But  discussion  and  more  mature 
examination  have  settled  the  question  otherwise  ; 
and  it  has  long;  been  the  established  doctrine, 
and  we  believe  now  assented  to  by  all  who  have 
examined  the  subject,  that  the  original  jurisdic- 
tion of  this  court  is  confined  to  the  cases  speci- 


NOTES    UPON    LECTURE    VII.  355 

fied  in  the  Constitution,  and  that  Congress  can-  lkctuue  vii. 
not  enlarcre  it.      In   all   other  cases  its  power  ^"""^"' !^''"" , 

o  1  pose  iion-jiulicial 

must  be  appelUlte."  'lntles  upon  the 

The  same  questions  were  afterwards  discussed 
in  Gordon  v.  United  States,^  on  an  appeal  from 
the  Court  of  Claims;  and  in  United  States  v. 
Jones^  explanatory  of  that  case.  The  cases 
settle  the  principle  that  courts  created  by  law 
to  exercise  the  judicial  power  conferred  by  the 
Constitution  of  the  United  States  are  purely 
judicial  bodies. 

The  converse  of  this  proposition  does  not  hold 
good  as  to  legislative  bodies,  existing  under  the 
laws  of  the  United  States.  At  October  Term, 
1857,  it  was  held  by  a  majority  of  the  Supreme 
Court  that  a  territorial  statute  of  Oregon,  dis- 
solving the  bonds  of  matrimony  betw^een  a  hus- 
band and  his  wife,  (the  husb;Uid  being  a  resident 
of  Oregon,  the  wife  and  children  residents  in 
Ohio  where  they  had  been  left  by  the  husband 
under  promise  that  he  would  return  or  send  for 
them,  and  the  statute  being  enacted  on  the 
husband's  application,  without  knowledge  of  the 
wife,)  was  an  exercise  of  the  legislative  powder  of 
the  territory  on  a  rightful  subject  of  legislation, 
according  to  the  prevailing  judicial  opinion  of 
the  country,  and  the  understanding  of  the  legal 
profession  at  the  time  when  the  act  of  Con- 
gress establishing  the  territorial  government  w\as 
enacted  (August  15,  1848).^ 

1  2  Wall.  561  ;  117  U.  S.  697. 

2  119  U.  S.  477. 

3  Maynard  v.  Hill.  125  U.  S.  190. 


356  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  vil  So  extreme  a  case  as  this,  where  manifest  in- 

Atteinpts  to  im-    ^^gj-j^g  y^^^  done  Under  the  form  of  law,  shows 

pose  iion-juaicial   •' 

duties  upon  the  that  legislatures  ought  not  to  exercise  judicial 
powers ;  or,  at  least,  if  they  do  exercise  them, 
should  be  required  to  cite  in  all  interested  parties 
before  they  do  it. 

2.   How  far  the  Laws  of  the  Place  of  Trial 
prevail. 

Local  law :  when       The  courts  of  the  United  States  are  neces- 
prevaiiing.  sarily  held   within   the    domains   of   forty-four 

independent  States ;  to  say  nothing  of  the  Ter- 
ritories and  the  District  of  Columbia.  The 
subjects  of  controversy  which  they  have  to 
adjudicate  ujDon  generally  grow  out  of  as  many 
different  systems  of  law,  and  are  tried  in  locali- 
ties having  as  many  different  systems  of  practice. 
On  this  subject  the  Revised  Statutes  of  the 
United  States  have  made  some  provisions  which 
are  printed  in  the  margin.^ 

^  "Sec.  722.  The  jurisdiction  in  civil  and  criminal  matters,  con- 
ferred on  the  District  and  Circuit  Courts  by  the  provisions  of  this 
title,  and  of  title  "Civil  Rights,"  and  of  title  "Crimes,"  for  the 
protection  of  all  persons  in  the  United  States  in  their  civil  rights, 
and  for  their  vindication,  shall  be  exercised  and  enforced  in  con- 
formity with  the  laws  of  the  United  States,  so  far  as  such  laws  are 
suitable  to  carry  the  same  into  effect ;  but  in  all  cases  where  they 
are  not  adapted  to  the  object,  or  are  deficient  in  the  provisions 
necessary  to  furnish  suitable  remedies  and  punish  offences  against 
law,  the  common  law,  as  modified  and  changed  by  the  constitution 
and  statutes  of  the  State  wherein  the  court  having  jurisdiction  of 
such  civil  or  criminal  cause  is  held,  so  far  as  the  same  is  not  incon- 
sistent with  the  Constitution  and  laws  of  the  United  States,  shall 
be  extended  to  and  govern  the  said  courts  in  the  trial  and  disposi- 
tion of  the  cause,  and,  if  it  is  of  a  criminal  nature,  in  the  infliction 
of  punishment  on  the  party  found  guilty." 

"  Sec.  914.  The  practice,  pleadings,  and  forms  and  modes  of  pro- 


NOTES    UPON    LECTURE    VII.  6-j1 

The  adoption  of  State  systems  of  remedy  lecture  vii. 
stops,  however,  when  they  conflict  with  the  "^^jj^j^V  ^^ '*^" 
Constitution  ;  as,  for  instance,  the  blending  of 
remedies  at  law  and  in  equity,  so  as  to  deprive 
a  litigant  of  his  constitutional  right  to  a  trial 
by  jury,  where  his  remedy  is  a  remedy  at  com- 
mon law.  This  question  has  often  arisen.  In  a 
late  case^  from  Mississippi,  the  opinion  of  the 
court  was  delivered  by  Mr.  Justice  Field.  He  said : 

"  The  general  proposition,  as  to  the  enforce- 
ment in  the  Federal  courts  of  new  equitable 
rights  created  by  the  States,  is  undoubtedly  cor- 
rect, subject,  however,  to  this  qualification,  that 
such  enforcement  does  not  impair  any  right  con- 
ferred, or  conflict  with  any  inhibition  imposed, 
by  the  Constitution  or  laws  of  the  United  States. 
Neither  such  right  nor  such  inhibition  can  be  in 
any  way  impaired,  however  fully  the  new  equi- 
table right  may  be  enjoyed  or  enforced  in  the 
States  by  whose  legislation  it  is  created.  The 
Constitution,  in  its  Seventh  Amendment,  de- 
clares that  "  in  suits  at  common  law,  w^here  the 
value  in  controversy  shall  exceed  twenty  dollars, 
the  right  of  trial  by  jury  shall  be  preserved." 
In  the  Federal  courts  this  right  cannot  be  dis- 
pensed with,  except  by  the  assent  of  the  par- 
ties entitled  to  it,  nor  can  it  be    impaired  by 

ceeding  in  civil  causes,  other  than  equity  and  admiralty  causes,  in 
the  Circuit  and  District  courts,  shall  conform,  as  near  as  may  be,  to 
the  practice,  pleadings,  and  forms  and  modes  of  proceeding  existing 
at  the  time  in  like  causes  in  the  courts  of  record  of  the  State  within 
which  such  Circuit  or  District  courts  are  held,  any  rule  of  court  to 
the  contrary  notwithstanding." 
1  ScoU  V.  Neely,  140  U.  S.  106. 


358  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkcturk  VII.      any  blending  with  a  claim,  properly  cognizable 
Local  law:  when  ^^  ^^^^   ^£  adeniand  for  equitable  relief  in  aid  of 

inevailing.  '  J 

the  legal  action  or  during  its  pendency.  Such  aid 
in  the  Federal  courts  must  be  sought  in  separate 
proceedings,  to  the  end  that  the  right  to  a  trial 
by  a  jury  in  the  legal  action  may  be  preserved 
intact." 

"The  Code  of  Mississippi  gives  to  a  simple 
contract  creditor  a  right  to  seek  in  equity, 
in  advance  of  any  judgment  or  legal  proceed- 
ings upon  his  contract,  the  removal  of  obsta- 
cles to  the  recovery  of  his  claim  caused  by 
fraudulent  conveyances  of  property.  There  the 
whole  suit,  involving  the  determination  of  the 
validity  of  the  contract,  and  the  amount  due 
thereon,  is  treated  as  one  in  equity,  to  be  heard 
and  disposed  of  without  a  trial  by  jury.  It  is 
not  for  us  to  express  any  opinion  of  the  wisdom 
of  this  law,  or  whether  or  not  in  its  operation  it 
is  more  advantageous  in  the  interests  of  justice 
than  an  entire  separation  of  proceedings  a^  law 
from  those  for  equitable  relief.  It  is  sufficient 
that  under  the  statute  of  the  United  States  such 
separation  is  required  in  the  Federal  courts,  and 
by  the  Constitution,  in  cases  at  common  law,  a 
right  to  a  trial  by  jury  is  secured  to  the  defend- 
ant." 

As  to  the  more  essential  matter,  the  law  which 
is  to  determine  the  rights  of  the  parties  to  the 
controversy,  the  rule  in  this  respect  is  thus 
stated  by  Mr.  Justice  Bradley  in  a  carefully  con- 
sidered opinion  :  ^ 

1  Burgess  v.  Seligman,  107  U.  S.  20,  33,  34. 


NOTES    UPON    LECTURE    VII.  359 


"  The  existence  of  two  co-ordinate  jurisdictions  lectup.b  vii. 

Ix)Ciil  law : 
construed. 


in  the  same  Territory  is  peculiar,  and  the  results  ^^"^!  '^"^ "  *'"^ 


would  be  anomalous  and  inconvenient  but  for 
the  exercise  of  mutual  respect  and  deference. 
Since  the  ordinary  administration  of  the  law  is 
carried  on  by  the  State  courts,  it  necessarily  hap- 
pens that,  by  the  course  of  their  decisions,  cer- 
tain rules  are  established  which  become  rules  of 
property  and  action  in  the  State,  and  have  all 
the  effect  of  law,  and  which  it  would  be  wrong 
to  disturb.  This  is  especially  true  with  regard 
to  the  law  of  real  estate  and  the  construction  of 
State  constitutions  and  statutes.  Such  estab- 
lished rules  are  always  regarded  by  the  Federal 
courts,  no  less  than  by  the  State  courts  them- 
selves, as  authoritative  declarations  of  what  the 
law  is.  But  when  the  law  has  not  been  thus 
settled,  it  is  the  right  and  duty  of  the  Federal 
courts  to  exercise  their  own  judgment ;  as  they 
also  always  do  in  reference  to  the  doctrines  of 
commercial  law  and  general  jurisprudence.  So, 
when  contracts  and  transactions  have  been  en- 
tered into,  and  rights  have  accrued  thereon 
under  a  particular  state  of  the  decisions,  or 
when  there  has  been  no  decision  of  the  State  tri- 
bunals, the  Federal  courts  properly  claim  the 
right  to  adopt  their  own  interpretation  of  the 
law  applicable  to  the  case,  although  a  different 
interpretation  may  be  adopted  by  the  State 
courts  after  such  rig:hts  have  accrued.  But  even 
in  such  cases,  for  the  sake  of  harmony  and  to 
avoid  confusion,  the  Federal  courts  will  lean 
towards  an  agreement  of  views  with  the  State 


360  LECTURES    ON    CONSTITUTIONAL    LAW. 

i.KCTuuE  VII.  courts,  if  the  question  seems  to  them  hahanced 
coustiued  '°^  with  doubt.  .  .  .  As,  however,  the  very  object 
of  giving  to  the  National  courts  jurisdiction  to 
administer  the  laws  of  the  States  in  controver- 
sies between  citizens  of  different  States  was  to 
institute  independent  tribunals,  which  it  might 
be  supposed  would  be  unaffected  by  local  preju- 
dices and  sectional  views,  it  would  be  a  derelic- 
tion of  their  duty  not  to  exercise  an  independent 
judgment  in  cases  not  foreclosed  by  previous 
adjudication."  ^ 

3.    The  Right  to  Trial  hy  Jury. 

Trial  by  jmy.  Tliis  Constitutional  right,  so  far  as  it  relates 

to  civil  cases,  has  been  sufficiently  considered. 
In  regard  to  persons  accused  of  criminal  offences 
before  a  police  court,  without  a  jury,  it  was 
held  at  October  Term,  1887,  that  the  Police 
Court  of  the  District  of  Columbia  was  without 
constitutional  power  to  try,  convict,  and  sentence 
to  punishment  a  person  accused  of  a  conspiracy 
to  prevent  another  person  from  pursuing  his 
calling  and  trade  anywhere  in  the  United  States, 
and  to  boycott,  injure,  molest,  oppress,  intimi- 
date, and  reduce  him  to  beggary  and  want, 
although  the  Revised  Statutes  relating  to  the 
District  of  Columbia  provide  that,  "  Any  party 
deeming  himself  aggrieved  by  the  judgment  of 
the  police  court  may  appeal  to  the  Supreme 
Court "  of  the  district :  as  the  provisions  of  the 

1  See  Hardin  v.  Jordan,  140  U.  S.  371 ;  Mitchell  v.  Smale,  140 
U.  S.  406  ;  St.  Louis  v.  Rutz,  138  U.  S.  226 ;  Barney  v.  Keokuk, 
94  U.  S.  324 ;  Packer  v.  Bird,  137  U.  S.  661. 


NOTES    UPON    LECTURE    VII.  361 

Constitution  relating  to  trial  by  jury  are  in  force  lecti:re  vii. 
in  the  District  of  Columbia.^  ^""^  ^^ ^'"^^' 

It  is  held  that  the  Sixth  Amendment  provid- 
ing for  the  trial  in  criminal  prosecution  by  a 
jury  of  the  State  and  district  wherein  the  crime 
shall  have  been  committed,  has  reference  only 
to  offences  against  the  United  States  committed 
within  a  State.'^ 

4.   Ambassadors,  other  Piiblic  Ministers,  and 
Consuls. 

The  statute  which  regulates  this  jurisdiction  suits  by  ambassa^ 
is  section   687  of   the    Revised    Statutes.     "  It '^°''' ^''• 
[the  Supreme  Court]  shall  have  exclusively  all 
such  jurisdiction  of  suits  or  proceedings  against 
ambassadors,  or  other  public  ministers,  or  their 
domestics,  or  domestic  servants,  as  a   court  of 
law    can    have    consistently    with    the   law    of 
nations ;  and  original,  but  not  exclusive,  juris- 
diction of  all  suits  brought  by  ambassadors,  or 
other  public  ministers,  or  in  which  a  consul  or    - 
vice-consul  is  a  party." 

These  provisions  are  plenary.  When  such  a 
suit  appears  upon  the  docket,  and  this  privilege 
is  claimed  either  by  plaintiff  or  defendant,  the 
first  question  to  be  passed  upon  is  whether  he  is 
entitled  to  it.  It  has  seemed  to  me  that  there 
is,  and  from  the  nature  of  the  case  can  be,  but 
one  class  of  evidence  that  can  establish  this  fact. 
Whether  a  person  is  or  is  not  a  diplomatic  rep- 

1  Callan  v.  Wilson,  127  U.  S.  540. 

2  Cook  V.  United  States,  138  U.  S.  157. 


362  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  VII.  resentative  or  consular  agent  of  a  foreign  power, 
dorr  etV"^''"'^'^  accepted  as  such  l)y  our  Government,  is  a  political 
fact  to  be  established  by  the  certificate  of  the 
Secretary  of  State.  He  may  have  been  accepted 
as  such  yesterday,  and  may  not  be  so  accepted 
to-day.  The  Department  of  State  is  the  only 
place  where  absolutely  correct  information  on 
the  subject  can  be  had.  It  seems  to  me  that  the 
courts  ought,  in  every  case,  to  insist  upon  this 
as  the  best  evidence,  to  show  what  the  political 
department  of  the  Government  has  determined 
as  to  the  status  of  the  individual.  The  courts, 
however,  have  not  gone  quite  to  this  extent.  In 
a  recent  case  it  is  said  :  ■•'  We  do  not  assume  to 
sit  in  judgment  upon  the  decision  of  the  Execu- 
tive in  reference  to  the  public  character  of  a 
person  claiming  to  be  a  foreign  minister,  and 
therefore  have  the  right  to  accept  the  certificate 
of  the  Department  of  State  that  a  party  is  or  is 
not  a  privileged  person,  and  cannot  properly  be 
asked  to  proceed  upon  argumentative  or  collateral 
proof."  ^ 

5.    Admiralty  and  Maritime  Jurisdiction. 

Admiralty  juris-  Nothing  further  need  be  said  on  this  point 
except  that  it  has  recently  been  held  that  since 
the  passage  of  the  act  of  June  19,  1886,  24  Stat. 
79,  this  jurisdiction  is  extended  over  cases  of 
limited  liability  on  the  navigable  rivers  of  the 
United  States.^ 


1  In  re  Baiz,  1.35  U.  S.  403,  4.32. 

2  In  re  Garnett,  Petitioner,  140  U.  S.  000, 


NOTES  UrON  LECTURE  VII.  363 

6.    Controversies  between  a  State  and  Citizens. 
The  history  of  the  Eleventh  Amendment  and  lecture  vii. 

•i  Ti-  I  1  i-rii      Suits  against 

its  application  to  some  recent  cases  ^  is  lully  gt^j^es. 
set  forth  by  Judge  Miller.  In  a  still  more 
recent  case  it  was  held  that,  although  this 
amendment  applies,  in  terms,  only  to  suits 
against  a  State  by  citizens  of  another  State,  or 
by  citizens  or  subjects  of  any  foreign  state,  yet 
that  a  State  cannot,  without  its  own  consent, 
be  sued  in  a  Circuit  Court  of  the  United  States, 
upon  a  suggestion  that  the  case  is  one  arising 
under  the  Constitution  and  laws  of  the  United 
States.^ 

Mr.  Justice  Bradley,  in  delivering  the  opinion 
of  the  court,  said :  "  Looking  back  from  our 
present  standpoint  at  the  decision  in  Chisholm 
V.  Georgia,  we  do  not  greatly  wonder  at  the 
effect  which  it  had  on  the  country.  Any  such 
power  as  that  of  authorizing  the  Federal  judici- 
ary to  entertain  suits  by  individuals  against  the 
States,  had  been  expressly  disclaimed,  and  even 
resented  by  the  great  defenders  of  the  Consti- 
tution, whilst  it  was  on  trial  before  the  Ameri- 
can people."  And  then,  after  quoting  the  views 
of  Hamilton  in  the  Federalist,  No.  81,  and  re- 
ferring to  the  dissenting  opinion  of  Justice 
Iredell,  he  said :  "  Looking  at  the  subject  as 
Hamilton  did,  and  as  Mr.  Justice  Iredell  did, 
in  the  light  of  history  and  experience,  and  the 
established   order  of  things,  the   views   of   the 

1  New  Hampshire  v.  Louisiana,  108  U.  S.  76. 
^  2  Hans  V.  Louisiana,  134  U.  S.  1. 


364,  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkcture  VII.      latter  were  clearly  right,  as  the  people  of  the 
sutej'^''''"^        United  States,  in  their  sovereign  capacity,  sub- 
sequently decided."  ^ 

In  the  course  of  the  century  which  has  elapsed, 
especially  in  the  latter  part  of  it,  many  attempts 
have  been  made  to  enforce,  in  the  courts  of  the 
United  States,  private  rights  against  a  State,  by 
suing  its  officers. 

A  mass  of  authority  has  been  created  by  this 
litigation,  which  is  admirably  and  lucidly  re- 
viewed by  Mr.  Justice  Lamar .^     He  says  :  — 

''It  is  well  settled  that  no  action  can  be  main- 
tained in  any  Federal  court  by  the  citizens  of 
one  of  the  States  against  a  State,  without  its 
consent,  even  though  the  sole  object  of  such 
suit  be  to  bring  the  State  within  the  operation 
of  the  constitutional  provision  which  provides 
that  '  no  State  shall  pass  any  law  impairing  the 
obligation  of  contracts.'  This  immunity  of  a 
State  from  suit  is  absolute  and  unqualified,  and 
the  constitutional  provision  securing  it  is  not  to 
be  so  construed  as  to  place  the  State  within  the 
reach  of  the  process  of  the  court.  Accordingly, 
it  is  equally  w^ell  settled  that  a  suit  against  the 
officers  of  a  State,  to  compel  them  to  do  the 
acts  which  constitute  a  performance  by  it  of  its 
contracts,  is,  in  effect,  a  suit  against  the  State 
itself. 

"In  the  application  of  this  latter  principle 
two  classes  of  cases  have  appeared  in  the  deci- 

1  This  subject  is  further  treated  in  Lecture  VIII,  on  the  Supreme 
Court  of  the  United  States. 

2  Pennoyer  v.  McConnaughty,  140  U.  S.  1.  , 


NOTES    UPON    LECTURE    VII.  3bO 

sions  of  this  court,  and  it  is  in  determining  to  lectorb  vir. 
which  class  a  particidar  case  belongs  that  dif-  stales*^*""*' 
fering  views  have  been  presented. 

"  The  first  class  is  where  the  suit  is  brought 
against  the  officers  of  the  State,  as  representing 
the  State's  action  and  liability,  thus  making  it 
though  not  a  party  to  the  record,  the  real  party 
against  which  the  judgment  will  so  operate  as 
to  compel  it  to  specifically  perform  its  contracts.^ 

"  The  oilier  class  is  where  a  suit  is  brought 
against  defendants  who,  claiming  to  act  as 
officers  of  the  State,  and  under  the  color  of  an 
unconstitutional  statute,  commit  acts  of  wrong 
and  injury  to  the  rights  and  property  of  the 
plaintiff  acquired  under  a  contract  with  the 
State.  Such  suit,  whether  brought  to  recover 
money  or  property  in  the  hands  of  such  defend- 
ants, unlawfully  taken  by  them  in  behalf  of  the 
State,  or  for  compensation  in  damages,  or,  in  a 
proper  case  where  the  remedy  at  law  is  inade- 
quate, for  an  injunction  to  prevent  such  wrong 
and  injury,  or  for  a  mandamus,  in  a  like  case, 
to  enforce  upon  the  defendant  the  performance 
of  a  plain,  legal  duty,  purely  ministerial,  is  not 
within  the  meaning  of  the  Eleventh  Amend- 
ment an  action  against  the  State. ^ 

1  In  re  Aye.rs ,  123  U.  S.  443  ;  Louisiana  v.  Jrimel,  107  U.  S. 
711  ;  Antoni  v.  Greenhow,  107  U.  S.  769;  Cunninr/ham  v.  Macon 
&  Brunswick  Railroad^  109  U.  S.  446;  Ilagood  v.  Southern,  117 
U.  S.  52. 

2  Osborn  V.  Bank  of  the  United  States,  9  Wheat.  738  ;  Davis  v. 
Gray,  10  Wall.  203  ;  Tomlinson  v.  Branch,  15  Wall.  400  ;  Litch- 
field V.  Webster  County y  101  U.  S.  773  ;  Allen  v.  Baltimore  &  Ohio 
Railroad,  114  U.  S.  311  ;  Board  of  Liqtudation  v.  McComb,  92 
U.  S.  531 ;  Poindexter  v.  Greenhotv,  114  U.  S.  270. 


366 


LECTUllES    ON    CONSTITUTIONAL    LAW. 


Lecture  VIL 

Suits  against 
States. 


"  It  is  not  our  purpose  to  attempt  a  review  of 
all,  or  even  many,  of  these  decisions,  as  to  do  so 
intelligently  would  unnecessarily  protract  this 
opinion,  and  in  this  connection,  would  subserve 
no  useful  purpose.  It  will  be  sufficient,  perhaps, 
to  refer  to  some  of  those  which  this  case  most 
nearly  resembles." 

Then,  after  referring  to  the  cases  cited  in  the 
margin,^  he  continued  :  — 

"  The  dividins;  line  between  the  cases  to  which 
we  have  referred  and  the  class  of  cases  in  which 
it  has  been  held  that  the  State  is  a  party  de- 
fendant, and,  therefore,  not  suable,  by  virtue  of 
the  inhibition  contained  in  the  Eleventh  Amend- 
ment to  the  Constitution,  was  adverted  to  in 
Cunningham  v.  2Iacon  &,  Brunsivick  Railroad^ 
where  it  was  said,  referring  to  the  case  of  Davis 
V.  Gray :  '  Nor  was  there  in  that  case  any  affirm- 
ative  relief  granted  by  ordering  the  governor  and 
land  commissioner  to  perform  any  act  towards 
'perfectlncj  the  title  of  the  company'  Thus  hold- 
ing, by  implication,  at  least,  that  affirmative 
relief  would  not  be  granted  against  a  State 
officer,  by  ordering  him  to  do  and  perform  acts 
forbidden  by  the  law  of  his  State,  even  though 
such  law  mi2;ht  be  imconstitutional. 

"The  same    distinction  was    pointed    out  in 


1  Osborn  V.  Bank  of  the  United  States,  9  Wheat,  738,  859  ;  iVew 
Hampshire  v.  Lonisiana,  108  U.  S.  70  ;  In  re  Ayers,  123  U.  S.  443; 
Davis  V.  Grail,  1^  Wall.  203  ;  Board  of  Liquidation  v.  ilcComb,  92 
U.  S.  531  ;  roindcxter  v.  Greeuhoiv,  114  U.  S.  270  ;  Allen  v.  Balti- 
more <&  Ohio  Railroad  Co.,  114  U.  S.  311  ;  McGahey  v.  Virr/inia, 
135  U.  S.  662. 

2  109  U.  S.  446. 


NOTES    UPON     LECTURE    VII.  367 

Ilafjood  V.  Southern,  which  was  held  to  be,  in  lkcturk  vii. 
effect,  a  suit  a<z:ainst  the  State,  and  it  was  said  :  ^"'!'*  "g:'"»st 
'  A  broad  line  of  demarcation  separates  from 
such  cases  as  the  present,  in  which  the  decrees 
require,  hij  affinnative  official  action  on  the  part  of 
the  defendants,  the  2)GTformance  of  an  oWigation 
ivhich  belongs  to  the  State  in  its  political  cajKicity, 
those  in  which  actions  at  law  or  suits  in  equity 
are  maintained  against  defendants  who,  while 
claiming  to  act  as  officers  of  the  State,  violate 
and  invade  the  personal  and  property  rights  of 
the  plaintiffs  under  color  of  authority,  uncon- 
stitutional and  void.'  ^ 

"  The  cases  in  which  suits  ao;ainst  officers  of  a 
State  have  been  considered  as  against  the  State 
itself,  and,  therefore,  within  the  inhibition  of 
the  Eleventh  Amendment  to  the  Constitution, 
and  those  in  which  such  suits  were  considered 
to  be  against  State  officers,  as  individuals,  were 
elaborately  reviewed  and  distinguished  in  the 
recent  case  of  I71  re  Aijers.^  That  case  came 
before  us  on  application  for  habeas  corpus  by 
the  attorney  general  of  Virginia,  the  auditor  of 
the  State,  and  the  commonw^ealth's  attorney  for 
Loudoun  County  in  that  State,  who  were  in  the 
custody  of  the  United  States  marshal  for  the 
Eastern  District  of  Virginia,  for  contempt  of 
court,  in  disobeying  a  restraining  order  of  the 
Circuit  Court  of  the  United  States  for  that  dis- 
trict, commanding  them  not  to  institute  and 
prosecute  certain  suits  in  the  name  of  the  State 
of  Virginia,  required  to  be  brought  by  the  statutes 

1  117  U.  S.  52,  70.  2  123  U.  S.  443. 


368  LECTURES    ON    CONSTITUTIONAL    LAW. 

LEcrrRK  VII.  of  the  State.  The  suit  in  which  the  restraining 
states^"'^""^  order  was  issued  was  nominally  against  certain 
officers  of  the  State,  but  this  court  held  that  it 
was,  in  effect,  a  suit  against  the  State  itself,  and, 
therefore,  in  violation  of  the  Eleventh  Amend- 
ment to  the  Constitution.  And  that  such  being 
true,  the  acts  and  proceedings  of  the  Circuit 
Court  in  that  suit  were  null  and  void  for  all 
purposes ;  and  the  prisoners  were  discharged. 
In  delivering  the  opinion  of  the  court,  Mr.  Justice 
Matthews,  referring  to  the  class  of  cases  in  which 
it  had  been  adjudged  that  the  suit  was  against 
State  officers  in  their  private  capacity,  and  not 
against  the  State,  said :  '  The  vital  principle  in 
all  such  cases  is  that  the  defendants,  though  pro- 
fessing to  act  as  officers  of  the  State,  are  threat- 
ening a  violation  of  the  personal  or  property 
rights  of  the  complainant,  for  which  they  are 
personally  and  individually  liable.  .  .  .  This 
feature  will  be  found,  on  an  examination,  to 
characterize  every  case  where  persons  have  been 
made  defendants  for  acts  done  or  threatened  by 
them  as  officers  of  the  government,  either  of  a 
State  or  of  the  United  States,  where  the  objec- 
tion has  been  interposed  that  the  State  was  the 
real,  defendant,  and  has  been  overruled.'  ^ 

"In  Hans  v.  Louisiana^  the  general  rule  on 
this  subject  was  concisely  stated  by  Mr.  Justice 
Bradley  in  the  following  terms :  '  To  avoid  mis- 
apprehension it  may  be  proper  to  add  that, 
although  the  obligations  of  a  State  rest  for  their 

1  123  U.  S.  500,  50L  2  134  xj.  S.  1,  20,  21. 


NOTES    UPON    LECTURE    VII.  OD 

performance  upon  its  honor  and  good  faith,  and  lecture  vil 
cannot  be  made  the  subjects  of  judicial  cogni-  y[a[es*^'^'°^* 
zance  unless  the  State  consents  to  be  sued,  or. 
comes  itself  into  court ;  yet  where  property  or 
rights  are  enjoyed  under  a  grant  or  contract 
made  by  a  State,  they  cannot  wantonly  be  in- 
vaded. Whilst  the  State  cannot  be  compelled 
by  suit  to  perform  its  contracts,  any  attempt  on 
its  part  to  violate  property  or  rights  acquired 
under  its  contract,  may  be  judicially  resisted ; 
and  any  law  impairing  the  obligation  of  con- 
tracts under  which  such  property  or  rights  are 
held  is  void  and  powerless  to  affect  their  enjoy- 
ment.' 

7.    Inferior   Courts. 

This  grant  of  power  refers  to  courts  of  the  inferior  courts. 
United  States,  established  by  law,  under  the 
provisions  of  the  Constitution.  About  these 
nothing  more  need  be  said.  A  word  may  be 
added,  however,  concerning  some  courts,  created 
under  authority  of  Congress,  but  not  held  to  be 
courts  of  the  United  States  under  the  grant  of 
judicial  power  under  the  Constitution. 

As  long  ago  as  1828,  it  was  held  in  an  opin- 
ion delivered  by  Chief  Justice  Marshall,  that  a 
territorial  court  was  not  "  a  constitutional  court, 
in  which  the  judicial  power  conferred  by  the 
Constitution  on  the  General  Government  can  be 
deposited,"  but  a  legislative  court,  "  created  in 
virtue  of  the  general  right  of  sovereignty  which 
exists  in  the  Government,  or  in  virtue  of  that 
clause  which  enables  Congress  to  make  all  need- 


370  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkcttjrk  vit.      fill  rules  and  regulations  respecting  the  territory 

lufemrcoum.     i^gio^giug  to  the  United  States.^  "     The  District 

Court  of  Alaska  has  just  been  held  to  be  a  court 

of  this  stamp,^  Justices  Field,  Gray,  and  Brown 

dissenting,  but  not  on  this  point. 

A  recent  opinion  by  Mr.  Justice  Field  holds 
the  Consular  courts  established  in  foreign  coun- 
tries by  Congress  under  grants  of  rights  of  ex- 
territoriality to  the  United  States  by  treaty,  to 
be  valid  courts,  and  that  the  statutes  establish- 
ing them  do  not  infringe  the  Constitution. 
The  opinion  says  :  — 

"  The  framers  of  the  Constitution,  who  were 
fully  aware  of  the  necessity  of  having  judicial 
authority  exercised  by  our  consuls  in  non- 
Christian  countries,  if  commercial  intercourse 
was  to  be  had  with  their  people,  never  could 
have  supposed  that  all  the  guarantees  in  the 
administration  of  the  law  upon  criminals  at 
home  were  to  be  transferred  to  such  consular 
establishments,  and  applied,  before  an  American 
who  had  committed  a  felony  there  could  be 
accused  and  tried.  They  must  have  known  that 
such  a  requirement  would  defeat  the  main  pur- 
pose of  investing  the  consul  with  judicial  au- 
thority." "  By  the  Constitution  a  government 
is  ordained  and  established  '  for  the  United 
Stai-es  of  America,'  and  not  for  countries  out- 
side of  their  limits.  The  Constitution  can  have 
no  operation  in  another  country."  ^ 

1  American  Insurance  Co.  v.  Canter,  1  Pet.  511,  546. 

2  McAlister  v.  United  States,  141  U.  S.  Act  of  May  17,  1884, 
23  Stat.  24,  c.  53. 

«  In  re  Boss,  Petitioner,  140  U.  S.  453, 


NOTES    UPON    LECTURE    VII.  371 

When  the  Roman  Empire  fell,  the  influence  lecture  vn. 
of  its  wonderful  system  of  law  remained.  Even  ^^e^'o""  <=<'°"»- 
the  common  law  traces  to  Rome  the  principles 
on  which  it  is  grounded.  But  when  the  Turks 
conquered  Constantinople,  the  Twelve  Tables 
and  the  Institutes  gave  place  to  the  Koran  as  a 
system  of  law.  The  unwillingness  of  the  powers 
of  Europe  to  submit  tlieir  subjects  to  such  a 
system  —  or  want  of  system  —  of  jurisprudence, 
led  to  the  establishment  of  consular  courts  in 
Ottoman  countries,  with  civil  and  criminal  juris- 
diction over  the  subjects  or  citizens  of  the 
nationality  to  which  the  particular  capitulation 
was  granted.  The  first  was  made  to  France, 
from  which  circumstance  all  Christians  in  the 
Ottoman  dominions  came  to  be  called  Franks. 

As  intercourse  with  Asia  grew,  the  same 
system  of  consular  courts,  with  extraterritorial 
jurisdiction,  was  adopted  there. 

These  concessions  proved  to  be  of  great  im- 
portance to  Americans  residing  in  those  coun- 
tries. Congress  created  consular  courts  to 
exercise  the  granted  powers,  both  civil  and 
criminal.  In  the  latter  it  was  a  necessity  that 
proceedings  should  be  instituted  against  persons 
accused  of  murder,  without  the  intervention  of 
a  grand  jury,  and  that  they  should  be  tried 
without  a  petit  jury.  Some  strict  construction- 
ists in  Congress  and  elsewhere  questioned  the 
constitutionality  of  such  proceedings.  This 
decision  of  the  Supreme  Court,  announced  by 
Mr.  Justice  Field,  has  set  at  rest  all  such 
questions. 


372  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  VII.  SoHiewliat    akin   to   tliis    is    the    jurisdiction 

Inferior  courts,     ^j^-^j^   ^  District   Court    of   the   United   States 

may  acquire  over  crimes  committed  on  Guano 
Islands,  by  reason  of  the  offender  being  brought 
first  into  the  district.^ 

1  Eev.  Stat.  §  5576.     Jones  v.  United  States,  137  U.  S.  202. 


VIII. 

THE  SUPREME  COURT  OF  THE  UNITED 
STATES. 

Article    III,  Section  1.     The  judicial  power  of  Lecture  VIII. 

the  United  States,  shall  be  vested  in  one  supreme 
Court,  and  in  such  inferior  Courts  as  the  Congress  may 
from  time  to  time  ordain  and  establish.  The  judges, 
both  of  the  supreme  and  inferior  Courts,  shall  hold 
their  Offices  during  good  Behavior,  and  shall,  at  stated 
Times,  receive  for  their  services,  a  Compensation, 
which  shall  not  be  diminished  during  their  Continuance 
in  Office. 

Section  2.  The  judicial  Power  shall  extend  to  all 
Cases,  in  Law  and  Equity,  arising  under  this  Constitu- 
tion, the  Laws  of  the  United  States,  and  Treaties 
made,  or  which  shall  be  made,  under  their  authority ; 
—  to  all  Cases  affecting  Ambassadors,  other  public 
Ministers  and  Consuls  ;  —  to  all  Cases  of  Admiralty 
and  maritime  Jurisdiction  ;  —  to  Controversies  to  which 
tlie  United  States  shall  be  a  Party  ;  —  to  Controversies 
between  two  or  more  States  ;  —  between  a  State  and 
Citizens  of  another  State  ;  —  between  Citizens'  of  dif- 
ferent States  ;  —  between  Citizens  of  the  same  State 
claiming  Lands  under  Grants  of  different  States,  and 
between  a  State,  or  the  Citizens  thereof,  and  foreign 
States,  Citizens  or  Subjects. 

In  all  Cases  affecting  Ambassadors,  other  public 
Ministers  and  Consuls,  and  those  in  which  a  State 
shall  be  Party,  the  supreme  Court  shall  have  original 
jurisdiction.  In  all  the  other  Cases  before  mentioned, 
the  supreme  Court  shall  have  appellate  jurisdiction, 
both  as  to  Law  and  Fact,  with  such  Exceptions,  and 
under  such  Regulations  as  the  Congress  shall  make. 

Article  XI  of  the  Amendments.  The  Judicial 
Power  of  the  United  States  shall  not  be  construed  to 

373 


374 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  VIIL 


The  Supreme 
Court. 


Its  judicial 
history. 


extend  to  any  suit  in  law  or  equity,  commenced  or 
prosecuted  against  one  of  the  United  States  by  Citi- 
zens of  another  State,  or  by  Citizens  or  Subjects  of 
any  Foreign  State. 

I  HAVE  selected  a  subject  for  this  address  ^  in 
which  I  trust  the  young  gentlemen  present,  who 
have  just  graduated,  will  feel  an  interest  as 
great  as  their  seniors  in  the  profession  of  the 
law.  It  is  one  which  ouo;ht  to  enoi:;ifj-e  the 
thoughts  and  reflections  of  every  member  of 
the  legal  profession  in  the  United  States,  and  it 
has  been  chosen  because  my  own  familiarity 
with  the  topic  will,  I  trust,  enable  me  to  say 
somethino;  valuable    in   rec^ard  to    the    hio-hest 

O  o  o 

judicature  in  this  country.  My  subject  is  "  The 
Supreme  Court  of  the  United  States." 

This  court  may  be  regarded  in  many  respects, 
to  consider  each  one  of  which  would  consume 
more  time  than  is  permissible  upon  an  occasion 
like  this.  There  are,  and  might  be  discussed 
separately,  its  jurisdiction,  the  jj^^'sonnel  of  its 
organization,  the  history  of  the  men  who  have 
occupied  places  upon  its  bench,  a  review  of  the 
great  cases  decided  by  it,  and  a  general  outlook 
upon  the  principal  events  in  its  career. 

Upon  the  present  occasion  I  propose  to  con- 
sider the  history  of  the  court  with  relation  to 
its  effect  upon  the  course  of  the  General  Gov- 
ernment, and  in  doing  this  I  can  best  illustrate 
my  meaning  and  better  interest  my  listeners  by 

1  This  lecture  was  delivered  by  Mr.  Justice  Miller  before  the 
Alumni  of  the  Law  Department  of  the  University  of  Michigan  on 
the  29th  of  June,  1887,  as  an  Address  at  the  semi-centennial  cele- 
bration of  the  founding  of  the  University. 


THE    SUPREME    COURT.  375 

a  reference  to  some  of  its  decisions  upon  great  lecture  viii. 
constitutional    questions   that    have    influenced,  |j^gto"''*'^^ 
and   in   some  instances  controlled,    the    course 
of    the    other    two    great  departments   of   the 
Government. 

The  f  ramers  of  the  Constitution  of  the  United  Division  of 
States  were  governed  by  the  principle  that  the  Qovlirnmen J 
powers  which  belong  to  all  governments  could  be 
most  safely  and  satisfactorily  exercised  by  their 
division  among  three  separate  branches  or  de- 
partments, to  one  or  the  other  of  which,  in  the 
main,  they  were  all  distributed.  These  depart- 
ments are  called  the  executive,  the  legislative, 
and  the  judicial.  The  line,  however,  is  not  per- 
fect which  divides  the  powers  exercised  by  each 
of  them  from  those  of  the  others.  The  Presi- 
dent, or  the  Executive,  takes  part  in  the  mak- 
ing of  laws  by  his  signature  to  them,  or  by  his 
refusal  to  sign  them,  in  which  event  a  two-thirds 
vote  of  the  Legislature  is  required  to  make  the 
act  a  law.  The  Senate  partakes  in  the  execu- 
tive function  by  its  power  to  confirm  or  reject 
treaties  made  by  the  President,  as  well  as  his 
nominations  to  office ;  and  the  power  to  try  im- 
peachments, which  is  essentially  judicial  in  its 
nature,  is  also  given  to  that  body.  Yet,  not- 
withstanding these  departures  from  the  general 
principle,  it  remains  true  that  the  great  execu- 
tive functions  of  the  Government  in  this  country 
are  given  to  the  President,  the  legislative  to 
Congress,  and.  more  rigidly  than  in  either  of  the 
other  cases,  the  judicial  to  the  courts  of  the 
United  States. 


376  LECTURES    ON    CONSTITUTIONAL    LAW. 

LMimiRE  VIII.         Of  the   judicial    department   of  the    Govern- 

Court'iTthThead  ^^^^^  the  Supreme  Court  is  the  head  and  repre- 

of  the  judicial  de- sentative,  and  to  it  must  come  for  final  decision 

partmeut.  ^^^  ^^^^   great  legal  questions  which  may  arise 

under  the  Constitution,  the  laws,  or  the  treaties 

of  the  United  States.     It  is  to  this  court,  and 

to  some  detached  portions  of  its  history  of  nearly 

one  hundred  years,  that  I  propose  to  call  your 

attention. 

It  has  been  said  of  this  court,  that  the  Con- 
stitution created  it  for  the  purpose  of  constru- 
ing that  instrument.  The  popular  idea  to-day 
is  that  such  is  the  primary  and  most  important 
object  of  its  existence.  To  some  extent  this 
may  be  so,  but  it  is  undoubtedly  true  that  the 
judicial  function  of  administering  justice  as  a 
court  of  law  between  certain  classes  of  litigants, 
and  upon  certain  subjects  of  dispute,  is  the  duty 
in  which  it  is  principally  engaged.  In  the  ad- 
ministration of  this  duty  questions  must  occa- 
sionally arise  in  regard  to  the  validity  of  the 
laws  enacted  by  the  Congress  of  the  United 
States,  or  of  a  State,  or  of  an  act  of  the  ex- 
ecutive department  of  the  Government,  as  to 
whether  such  law  or  action  is  in  conformity  to 
or  in  violation  of  the  Constitution  of  the  United 
States  ;  and  the  court  must  in  such  cases  give 
judicial  construction  to  that  instrument.  Such 
construction,  being  by  the  highest  law  tribunal 
of  the  country,  is  to  be  received  as  the  law,  not 
only  of  that  particular  case,  but  the  rule  of 
action  for  all  inferior  judicial  tribunals  in  all 
cases  of  a  like  character. 


THE    SUPREME    COURT.  377 

As  it  is  also  desirable  that  there  should  be  lecture  viii. 
uniformity  of  construction  upon  all  important  g.^^'reTe^courr 
questions   arising   under   the    Constitution,   the  construing  the 

-,      .    .  p  ,1  ii-ii  •■•         Constitution. 

decisions  oi  no  other  body  m  the  organization 
of  the  Government  are  likely  to  command  the 
same  influence,  in*  producing  that  result,  as  those 
of  the  Supreme  Court.  And  as  the  same  ques- 
tions may  time  after  time  be  brought  before  it, 
and  will  in  general  be  decided  in  the  same  way, 
its  decisions  constitute  a  body  of  precedents 
which  naturally  come  to  command  the  respect 
of  all  other  tribunals,  and  to  be  generally  re- 
ceived as  the  true  construction  of  the  organic 
law  of  the  nation,  upon  the  points  thus  deter- 
mined. 

It  is  not  strictly  true  that  these  decisions  are  Not  strictly  bind- 

n  1  •     T  ii  i-  1    ii       ing  upon  the  other 

m  all  cases  binding  upon  the  executive  and  the  departments, 
legislative  branches  of  the  Government.  In 
certain  classes  of  cases  every  man  who  takes  an 
oath  to  support  the  Constitution  of  the  United 
States  must  find  himself  in  the  presence  of  em- 
barrassing questions,  in  regard  to  which  his 
action  must  be  governed  by  his  own  conviction 
of  the  duties  which  it  imposes  upon  him.  Still 
it  may  be  said  that  in  the  history  of  the  Govern- 
ment, during  a  period  of  nearly  a  century  since 
its  organization,  it  has  been  exceedingly  rare 
that  a  principle  of  constitutional  law  has  been 
distinctly  laid  down  by  the  Supreme  Court,  which 
has  not  come  to  be  recoo;nized  as  the  true  sense 
of  that  instrument. 

The  act  of  Congress  under  which  the  organ-  organizatioa  of 
ization  of  this  court   took  place  was  approved  ^^^  °®"''' 


378 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  VIII. 
Organization  of 
the  court. 


Succession  of 
Chief  Justices. 


September  24,  1789.  It  provided  for  the  ap- 
pointment of  a  Chief  Justice,  and  five  Associate 
Justices,  who  should  constitute  the  court.  The 
first  judges  appointed  under  this  law  were  John 
Jay  of  New  York,  Chief  Justice ;  and  John 
Rutledge  of  South  Carolina ;  James  Wilson  of 
Pennsylvania ;  William  Gushing  of  Massachu- 
setts ;  Robert  Harrison  of  Maryland  ;  and  John 
Blair  of  Virginia,  Associate  Justices. 

Jay  served  as  Chief  Justice  from  1789  to  1795, 
when  he  resigned.  During  this  period,  how- 
ever, he  was  Minister  of  the  United  States  to 
England.  And,  as  showing  that  this  high  judi- 
cial office  was  not  in  that  early  time  considered 
incompatible  with  the  discharge  of  the  functions 
of  other  offices,  it  may  be  mentioned  that,  when 
Marshall  was  appointed  and  confirmed  as  Chief 
Justice  in  1801,  he  was  Secretary  of  State  in 
the  Cabinet  of  President  John  Adams,  and, 
though  commissioned  and  taking  his  seat  upon 
the  bench,  he  continued  to  discharge  the  duties 
of  the  secretaryship  until  the  end  of  that  ad- 
ministration, a  period  of  two  or  three  months. 

On  the  resignation  of  Jay,  in  1795,  John  Rut- 
ledge  was  appointed  Chief  Justice,  received  his 
commission,  and  took  his  seat  in  court,  but,  not 
being  confirmed  by  the  Senate,  Oliver  Ellsworth 
was  appointed  in  1796.  He  served  as  Chief 
Justice  until  December,  1799,  when  he  resigned. 

John  Marshall  was  appointed  to  the  position 
of  Chief  Justice  in  1801,  and  served  a  period  of 
thirty-four  years,  until  he  died  in  1835.  After 
his  death  Roger  B.  Taney  was  appointed  to  the 


THE    SUPREME    COURT.  379 


vacant  place  in  1836,  and  held  it  until  he  died  lecture  viii. 

Succession  of 
Chief  Justices. 


in   1864,  after  a  service  of  twenty-eight  years. '  "*'^^^^'°"  ° 


With  the  additional  statement  that  Chief  Jus- 
tice Chase  succeeded  him,  and  presided  for  nine 
years,  when  he  died,  and  was  succeeded  by  the 
present  Chief  Justice  Waite,  I  am  compelled  to 
close  what  I  have  to  say  with  regard  to  the  per- 
sonal organization  of  the  court. ^  It  will  be  noted 
that  for  a  period  of  sixty-two  years  continuously 
the  court  was  presided  over  by  two  Chief  Jus- 
tices, which  may  be  supposed  to  have  aided  very 
much  in  the  stability  and  uniformity  of  its  course 
of  decisions. 

Very  early  in  the  history  of  the  court  a  ques-  Review  of  some 
tion  came  before  it  of  much  importance,  which  "^  *^'^  most  im- 

i  ■  portant  decisions. 

was  fully  considered  at  the  time,  and  in  which 
great  public  interest  was  felt.  Its  decision  caused 
the  adoption  of  an  amendment  to  the  Constitu- 
tion of  the  United  States,  the  Eleventh.  It 
arose  in  the  case  of  Chisholm  v.   The  State  of  Ckishoim  v. 

ry  •     2  Georgia,  2  Dall. 

Georgia.  ^^^ 

This  was  an  action  of  assumpsit,  instituted  in 
the  Supreme  Court  of  the  United  States,  under 
its  original    jurisdiction,  at   the  August  Term, 

1792,  and  was  decided  at  the  February  Term, 

1793.  The  State  of  Georgia,  which  was  sup- 
posed to  be  brought  before  the  court  by  the  ser- 
vice of  the  writ  upon  its  Governor  and  its 
Attorney  General,  refused  to  make  any  general 
appearance,  but  presented  by  its  attorneys,  In- 

1  Chief  Justice  Waite  died  March  23,  1888.  Chief  Justice  Fuller 
was  commissioned  July  20,  1888. 

2  2  Dall.  419. 


380  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  VIII.  gersoll  aiid  Dallas,  a  written  remonstrance  and 
^Georljia2iia.\\  p^otestation  against  the  exercise  of  jurisdiction 
419.  in  this  case.     The  question  thus  presented  was, 

whether  a  common  law  action  of  assumpsit  could 
be  sustained  against  a  State  in  the  Supreme 
Court  of  the  United  States  by  a  citizen  of  another 
State. 

The  action  was  commenced  under  the  second 
section  of  the  Third  Article  of  the  Constitution, 
providing  that  the  judicial  power  of  the  United 
States  shall  among  other  matters  extend  to  con- 
troversies between  a  State  and  citizens  of  an- 
other State,  and  that  the  Supreme  Court  shall 
have  original  jurisdiction  in  all  cases  in  which  a 
State  shall  be  a  party.  Chisholm,  being  a  citi- 
zen of  North  Carolina,  began  his  action  under 
this  provision  against  the  State  of  Georgia  in 
the  Supreme  Court  of  the  United  States.  The 
judges  delivered  separate  opinions. 

Iredell  of  North  Carolina,  who  had  succeeded 
Harrison  of  Maryland  as  a  member  of  the  court, 
delivered  a  very  learned  one,  tlie  main  object  of 
which  seemed  to  be  to  show  that,  inasmuch  as 
States  had  never  been  held  liable  to  action  at 
common  law,  the  State  in  this  case  could  not  be 
sued  in  an  action  of  assumpsit,  however  it  might 
be  in  rei»:ard  to  other  matters  of  liti^-ation.  The 
other  judges,  on  the  contrary,  all  agreed  in  the 
proposition,  that  the  provision  of  the  Constitu- 
tion, just  recited,  made  a  State  liable  to  be  sued 
for  any  legal  cause  of  action,  in  law  or  in  equity, 
in  the  Supreme  Court  of  the  United  States  by  a 
citizen  or  citizens  of  another  State. 


THE    SUPREME    COURT.  381 

This  proposition,  which,  as  Mr.  Randolph,  the  lecture  vni. 
Attorney    General    of    the    United    States    who  ^;'"'«^':^"^  \- 
argned  the  case  for  Chisholm,  said,  was  so  nn-  4io. 
popular  that  he  had  been  warned  against  the 
consequences  of  his  pressing  it  upon  the  court, 
was  received  with  very  great   disfavor.       The 
result  was  that  Congress  immediately  proposed 
the  Eleventh  Amendment  to  the  Constitution, 
which  was  ratified  by  the  States  as  soon  as  they 
had    an    opportunity   to   vote   npon    it.      That 
amendment  is  as  follows  :  — 

"  The  judicial  power  of  the  United  States  shall 
not  be  construed  to  extend  to  any  suit  in  law  or 
equity,  commenced  or  prosecuted  against  one  of 
the  United  States  by  citizens  of  another  State, 
or  by  citizens  or  subjects  of  any  foreign  State." 

It  is  a  little  remarkable  that,  notwithstanding 
the  unanimity  of  the  court  upon  this  question,  a 
different  opinion  had  been  expressed  by  Mr. 
Hamilton  in  No.  81  of  the  Federalist.  In  reply- 
ing to  the  objection  that  this  provision  of  the 
Constitution  subjected  a  State  to  be  sued  for  its 
debts  or  obligations,  he  says  :  — 

"  It  has  been  suggested  that  an  assignment  of 
the  public  securities  of  one  State  to  the  citizens 
of  another  would  enable  them  to  prosecute  that 
State  in  the  Federal  courts  for  the  amount  of 
those  securities,  a  suggestion  which  the  follow- 
ing considerations  prove  to  be  without  founda- 
tion." 

He  then  goes  on  to  show  that  it  is  inherent 
in  the  nature  of  sovereignty  not  to  be  amenable 
to  suit  without  its  consent,  and  that  this  is  the 


382 


LECTURES    ON    CONSTITUTIONAL   LAW. 


Lecture  VIII. 
Chisholm  v. 
Georgia,  2  Dall. 
419. 


New  Hampshire 
V.  Louisiana,  108 
U.  S.  76. 


general  sense  and  the  general  practice  of  man- 
kind ;  that  this  provision  of  the  Constitution 
can  only  be  construed  to  authorize  a  State  to 
bring  a  suit  against  citizens  of  other  States  in 
the  Federal  courts,  and  does  not  authorize  a  suit 
against  the  State  by  the  citizen  of  another  State. 

Mr.  Madison  and  Mr.  Marshall,  one  or  both 
of  them,  made  the  same  suggestion  in  the  Con- 
vention of  the  State  of  Virginia,  called  to  pass 
upon  the  adoption  of  the  Constitution. 

The  amendment  just  quoted  was  supposed  to 
have  settled  the  question  of  the  suability  of  a 
State  upon  its  obligations  or  for  its  debts  in  any 
other  mode  than  that  to  which  the  State  should 
give  its  express  consent,  and  that  the  courts  of 
the  United  States  had  no  jurisdiction  to  enter- 
tain such  suits.  But  curiously  enough,  after  the 
lapse  of  ninety  years,  the  suggestion  of  Hamil- 
ton in  regard  to  the  assignment  by  creditors  of 
a  State,  who  could  not  themselves  sue  in  the 
Federal  courts,  to  parties  who  could  sue  the 
State  in"  those  courts,  has  been  acted  upon. 

In  the  cases  of  J^ew  Hampshire  v.  Louisiana^ 
and  Heiv  York  v.  Louisiana,  reported  in  108 
U.  S.  76,  this  precise  question  was  brought  up. 
Although  the  jurisdiction  to  sue  a  State  in  the 
courts  of  the  United  States  by  the  citizens  of 
another  State,  or  by  citizens  or  subjects  of  any 
foreign  State,  was  abolished  by  the  Eleventh 
Amendment,  there  yet  remained  the  right  of 
one  State  to  sue  another.  Certain  creditors, 
therefore,  of  the  State  of  Louisiana,  who  could 
not  sue  that   State  themselves,  transferred   by 


THE    SUPREME    COURT.  383 

assignment  the  evidence  of  their  indebtedness,  lectuuk  viii. 
some  to  the  State  of  New  Hampshire  and  others  y'louisiZllm 
to  the   State  of  New   York,   and  these   States  u.  s.  76. 
brought    suits   in    the    Supreme    Court    of    the 
United  States  against  the   State  of   Louisiana 
upon  those  obligations. 

The  court,  after  a  very  elaborate  argument, 
decided  that  these  actions  could  not  be  sustained; 
that  "  the  evident  purpose  of  the  amendment, 
so  promptly  proposed  and  adopted,  was  to  pro- 
hibit all  suits  against  a  State  by  or  for  citizens 
of  other  States,  or  aliens,  without  the  consent  of 
the  State  to  be  sued,"  and  that  "  one  State  can- 
not create  a  controversy  with  another  State, 
within  the  meaning  of  that  term  as  used  in  the 
judicial  clauses  of  the  Constitution,  by  assuming 
the  prosecution  of  debts  owing  by  the  other 
State  to  its  citizen." 

At  the  same  term  there  was  presented  to  the  Louisiana  v. 
court  m  its  appellate  jurisdiction  an  eiiort  to  ^^^ 
force  the  State  of  Louisiana  to  pay  some  of  the 
same  kind  of  debts  out  of  the  money  in  its  treas- 
ury. This  was  a  proceeding  in  mandamus 
against  the  treasurer  of  the  State  to  compel 
him  to  pay  them  out  of  the  funds  in  his  hands 
as  such  officer,  and  by  a  bill  in  chancery  to  en- 
join the  payment  of  the  same  money  to  other 
creditors. 

Both  of  these  were  held  to  be  forbidden  by 
the  Constitution,  because  they  were  substantially 
suits  against  the  State. ^ 

1  Louisiana  v.  Jumel,  107  U.  S.  711. 


m 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lkcture  VIII. 
Louisiana  v. 
Jumel,  107  U.  S. 
711. 


And  tlioiii>;li  there  have  been  some  differences 
in  court  upon  the  question  of  how  far  an  action 
against  an  ofhcer  of  a  State  may  be  held  to  be 
a  suit  against  the  State,  so  as  to  come  within 
the  principle  of  the  Eleventh  Amendment  to  the 
Constitution,  excluding  the  jurisdiction  of  the 
Federal  courts,  yet  the  main  proposition  has 
been  steadily  sustained,  that  if  it  be  essentially 
a  suit  against  the  State  the  Federal  courts  can- 
not entertain  it.  In  view  of  the  many  millions 
of  dollars  of  indebtedness  of  the  States,  which 
they  refuse  to  pay,  the  importance  of  the  origi- 
nal decision,  which  evoked  the  constitutional 
amendment  forbidding  the  States  to  be  sued  in 
the  Federal  courts,  is  readily  to  be  perceived. 

Another  judgment  of  the  Supreme  Court  a 
little  later,  rendered  at  the  February  Term,  1803, 
which  has  been  very  far-reaching  in  its  influence 
upon  the  other  departments  and  other  officers  of 
Mdrhunjv.Madi- the  Government,  was  made  in  the  case  of  Mar- 
hury  V.  Madison} 

I  have  already  said  that  Marshall,  although 
Chief  Justice  of  the  Supreme  Court,  had  con- 
tinued to  act  as  Secretary  of  State  until  the 
close  of  John  Adams's  administration,  when  the 
latter  was  succeeded  by  Jefferson.  The  com- 
missions of  certain  officers,  signed  and  sealed  by 
the  President,  and  ready  for  delivery,  were  left 
in  the  office  of  the  Secretary  of  State,  which  the 
succeeding  Secretary,  Mr.  Madison,  refused  to 
deliver  to  the  parties  thus  commissioned.     The 


ton,  1  Cranch,  137. 


1  1  Cranch,  137. 


THE    SUPREME    COURT.  385 

result  of  this  was  that  Mr.  Marbury,  who  was  lecture  vin. 
one  of  these  parties,  commissioned  as  a  iustice  of  ^^"^^'>ni'''-^'<"f>- 

^  /       ^  J  son,  1  Cranch,  1.J7. 

the  peace  of  the  District  of  Cokunbia,  and  whose 
appointment  had  been  approved  by  the  Senate, 
having  demanded  the  delivery  of  his  commission, 
applied  to  the  Supreme  Court  for  a  writ  of  man- 
damus to  compel  its  delivery. 

The  opinion  in  the  case  was  delivered  by  Mar- 
shall himself,  as  Chief  Justice,  and  was  con- 
curred in  by  the  whole  court.  It  is  very  lengthy, 
and  an  exhaustive  discussion  of  the  power  of  a 
court  of  law  to  compel  officers  by  the  writ  of 
mandam^us  to  discharge  duties  which  it  is  clear 
they  are  bound  to  perform,  and  in  regard  to 
which  they  have  no  discretion.  The  court  de- 
cides that  since  the  commission  was  signed  and 
sealed  by  the  President  of  the  United  States, 
and  the  appointment  approved  by  the  Senate, 
there  was  no  authority  in  the  President  or  Sec- 
retary of  State  to  withhold  it ;  that  the  duty  to 
deliver  it  to  the  person  entitled  to  it  was  clear 
and  unquestionable,  and  that  this  duty  could  be 
enforced  by  any  court  having  jurisdiction  of  the 
case. 

The  court,  however,  came  to  the  conclusion 
that  this  was  not  a  case  in  which  it  had  any 
original  jurisdiction,  and  it  therefore  could  not 
issue  the  writ.  But  it  was  also  held  that  such 
jurisdiction  was  in  the  local  courts  of  the  District 
of  Columbia,  who  had  authority  to  issue  the 
writ  to  any  officer  within  the  District  who  re- 
fused to  perform  a  duty  merely  ministerial  in  its 
character,  in  regard  to  which  he  could  exercise 


386  LECTURES    OX    CONSTITUTIONAL    LAW. 

j>KCTURE  viii.     no  judgment,  and  that  this  was  of  that  class  of 
^«'"^":?'^-f"S' cases. 

son,  1  Oranch,  137. 

The  immense  importance  of  this  decision, 
though  in  some  respects  obiter,  since  the  court 
declared  in  the  end  that  it  had  no  jurisdiction  of 
the  case,  may  be  appreciated  when  it  is  under- 
stood that  the  principles  declared,  which  have 
never  since  been  controverted,  subjected  the 
ministerial  and  executive  officers  of  the  Govern- 
ment, all  over  the  country,  to  the  control  of  the 
courts,  in  regard  to  the  execution  of  a  large  part 
of  their  duties.  Its  application  to  the  very 
highest  officers  of  the  Government,  except  per- 
haps the  President  himself,  has  been  illustrated 
in  numerous  cases  in  the  courts  of  the  United 
States,  and  in  the  reports  of  the  Supreme  Court. 
Perhaps  one  of  the  latest  and  most  instructive 

United  states  V.    of  tlicse  is  the  casc  of  United  States  v.  Schurz,^ 

schurz,i(p.u.s.  (jgcided  at  October  Term,  1880. 

It  appears  that  Mr.  Schurz,  as  Secretary  of 
the  Interior,  after  a  patent  for  lands  had  been 
granted,  signed  by  the  President  of  the  United 
States,  and  recorded  in  the  Register  of  Patents, 
issued  an  order  to  the  Commissioner  of  the  Gen- 
eral Land  Office  that  he  should  withhold  the  in- 
strument, ^and  not  deliver  it  to  the  person  named 
in  it.  The  land  department  of  the  Government 
had  been  in  the  habit,  after  patents  for  lands 
were  issued,  and  even  after  they  had  been  deliv- 
ered, of  recalling  them  at  their  own  option  and 
revoking  them.     In  many  instances,  even  after 

1  102  U.  S.  378. 


THE    SUPREME    COURT.  387 

they  had  been  sent  to  the  local  land  office  for  lecturk  viii. 
delivery  to  the  joroper  parties,  they  had  been  re-^^^'^'^^l^'^Q^u^s 
called  while  there,  and  thus  their  owners  had  378. 
been  put  to  great  inconvenience  and  trouble. 

An  action  for  a  writ  of  'mandamus  to  compel 
Mr.  Schurz  to  deliver  this  patent  was  brought 
in  the  name  of  the  United  States  on  relation  of 
the  party  applying  for  the  writ,  who  was  the 
grantee  of  the  land.  The  Supreme  Court  held 
that  after  the  patent  had  been  signed,  sealed,  and 
recorded  there  no  longer  remained  in  the  officers 
of  the  Government  any  power  over  the  title,  or 
any  right  to  retain,  and  to  refuse  to  deliver  the 
patent.  They  therefore  authorized  the  issuing 
of  a  writ  by  the  Supreme  Court  of  the  District. 

This  decision  w\as  founded  upon  Marhury  v. 
Madison,  and  upon  its  reasoning,  as  many  other 
decisions  have  been ;  and  the  power  of  the  courts 
in  the  class  of  cases  described  in  that  opinion  — 
namely,  those  in  which  a  duty  is  imposed  by  law 
upon  an  officer  of  the  Government  to  do  a  specific 
act,  in  regard  to  which  he  has  no  discretion,  and 
which  act  is  simply  and  purely  ministerial  in  its 
nature  to  compel  their  performance,  has  been 
well  established,  and  is  one  of  the  most  useful 
principles  of  Federal  jurisprudence. 

During  the  long  Chief  Justiceship  of  Marshall, 
many  cases  of  public  and  political  importance, 
havinsc  a  larg-e  influence  over  the  course  of  the 
Government  and  very  materially  guiding  the 
action  of  the  executive  and  legislative  depart- 
ments, came  up  for  consideration.  I  nuist  only 
select  such  of  these  as  I  consider  most  imporr 


388 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  VIII. 

United  Stiitrs  v. 
Schiirz,  102  U.  S. 
378. 

McCiilloch  V. 
Maryland, 
4  Wheat.  316, 


tant,  and  which  can  be  touched  upon  within  the 
limits  of  tliis  discourse. 

The  next  of  these  to  which  I  shall  call  your 
attention  is  McCulloch  v.  Maryland,  decided  in 
1819,  and  reported  in  4  Wheat.  316.  It  in- 
volved the  question  of  the  power  of  the  General 
Government  to  create  a  national  bank,  with 
branches  in  the  States,  capable  of  issuing  circu- 
lating notes.  Such  a  bank  had  been  created 
under  Hamilton's  administration  of  the  treasury, 
and  its  charter  expired  about  the  commence- 
ment of  the  war  of  1812.  A  recharter  was 
refused  under  the  influence  of  the  strict  con- 
struction rule  of  Virginia  politics  in  regard  to 
the  power  of  Congress  to  create  such  a  bank. 
Mr.  Madison  himself,  who  was  then  President, 
was  opposed  to  it,  it  is  said,  upon  that  ground. 
But  the  disastrous  condition  of  the  public  credit, 
and  the  general  financial  ruin  which  followed  the 
close  of  that  war,  induced  Congress  to  charter 
a  new  bank.  This  was  done  in  1816,  and  re- 
ceived the  assent  of  Mr.  Madison. 

The  introduction  into  the  States  of  this  insti- 
tution, by  branches  of  the  principal  bank,  espe- 
cially with  the  power  of  issuing  circulating  notes, 
was  unpopular  in  many  of  them,  and  attempts 
were  made  to  resist  their  business  operations. 
Among  these  the  State  of  Maryland  assessed  a 
tax  upon  the  circulating  notes  of  the  bank, 
which  in  effect  was  intended  to  drive  them  from 
the  State.  In  the  attempt  to  enforce  this  law, 
the  Court  of  Appeals  of  Maryland  affirmed  the 
validity  of  the  statute  of  that  State  establishing 


THE    SUPREME    COURT.  389 

the  tax.     McCiilloch,  the  party  sued,  thereupon  lkoturk  viii. 
brought  the  case  by  a  writ  of  error  to  the  Su- '!(' ^ "/'"' ''"" 
preme  Court  of  the  United  States.  4  wheat,  aie. 

The  opinion  takes  a  very  wide  range  with 
regard  to  the  nature  and  power  of  the  Federal 
Government,  and  the  principles  of  construction 
of  the  Constitution.  It  is  one  of  the  ablest  of 
the  opinions  delivered  by  Chief  Justice  Marshall, 
and  has  often  b^en  referred  to  and  followed  in 
subsequent  cases. 

The  court  held  that  Congress  had  power  to 
incorporate  such  a  bank ;  that  although  there 
was  no  express  grant  of  such  power,  or  of  au- 
thority to  create  any  corporation,  yet,  as  one  of 
the  appropriate  means  of  exercising  the  powers 
of  the  Government  in  regard  to  the  collection 
and  disbursement  of  its  revenues  and  the  trans- 
fer of  them  from  one  point  to  another,  the  in- 
stitution of  this  bank,  with  the  right  to  establish 
its  branches  and  offices  of  discount  and  deposit 
within  a  State,  and  to  issue  circulating  notes, 
was  an  appropriate  means  of  carrying  into  effect 
the  powers  expressly  given  by  the  Constitution 
to  the  Government  of  the  Union. 

It  therefore  held  that  no  State  had  any  au- 
thority by  taxation  or  otherwise  to  impede  the 
necessary  and  proper  action  of  this  bank,  an 
instrumentality  which  Congress  deemed  neces- 
sary in  carrying  on  the  general  operations  of 
the  Government  of  the  United  States  connected 
with  the  treasury.  "  If,"  said  the  court,  '•  the 
right  of  the  State  to  tax  the  means  employed 
by  the   General   Government  be  conceded,  the 


390 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lkcturk  YIII. 
McCiilloch  V. 
Mnrylimd, 
4  Wheat.  316. 


declaration  that  the  Constitution  and  laws  made 
in  pursuance  thereof,  shall  be  the  supreme  law 
of  the  land,  is  empty  and  unmeaning  declama- 
tion." 

The  number  of  the  Justices  at  this  time  had 
been  increased  to  seven,  and  their  opinion  was 
unanimous. 

Just  prior  to  the  expiration  of  the  charter  of 
this  bank  in  1836,  the  question  of  its  renewal 
became  one  of  absorbing  public  interest.  The 
then  President  of  the  United  States,  General 
Jackson,  brought  all  his  influence  and  popularity 
to  bear  to  prevent  a  renewal  of  its  charter,  and 
the  question  entered  into  the  partisan  politics  of 
the  day  more  largely  than  any  other,  and  to 
some  extent  continued  to  do  so  until  the  late 
war.  The  Congress  of  1836  passed  the  bill  for 
the  recharter  of  the  bank,  but  President  Jack- 
son vetoed  it,  largely  on  the  ground  that  it  was 
unconstitutional.  It  may  be  said,  however,  that 
the  prevailing  sentiment  of  the  country,  and 
especially  of  its  leading  statesmen,  has  been  in 
the  main  favorable  to  the  constitutionality  of 
the  United  States  Bank  ;  and  no  decision  of  the 
Supreme  Court,  or  of  any  other  court  of  the 
United  States,  has  ever  impugned  or  denied 
the  correctness  of  the  principle  upon  which 
McCuUoch  V.  Maryland  was  decided. 

It  is  a  matter  of  interest,  which  I  cannot  for- 
bear to  mention  here,  that  the  present  national 
bank  system,  which  in  my  judgment,  and  in 
that  of  many  thinking  men,  statesmen  and 
financiers,  is  the  best  that  the  world  has  ever 


THE    SUPREME    COURT.  391 

seen,  originated  during   the  midst  of    the  civil  lecture  viii. 
war  with   the   Secretary  of  the   Treasury  who  ^■''";^'''';  ^- 
afterwards  came  to   Marshall's  place,  as  Chief  4  wiieat.  liio. 
Justice  of  the    Supreme  Court  of   the    United 
States. 

It  is  unnecessary  for  me  to  point  out  to  this 
intelligent  audience  the  great  influence  which 
that  decision  of  the  Supreme  Court  has  exer- 
cised over  the  material  and  financial  prosperity 
of  this  country.  Had  the  decision  been,  that 
there  existed  in  this  Government  no  power  to 
create  a  national  currency,  or  to  provide  for  a 
national  banking  system,  the  disastrous  effects 
upon  the  business  prosperity  of  the  people  can 
hardly  be  imagined.  Those  who  are  old  enough 
to  have  gone  through  the  State  bank  and  wild- 
cat systems  of  paper  money  prevalent  a  few 
years  since  in  this  country,  can  bear  feeling  tes- 
timony to  the  value  of  a  so-called  national  bank 
system. 

Another  decision  of   the  court,  made  in  the  Dartmouth  coi- 
same  year,  and  perhaps  at  the  same  term,  is  that  4wiJ[eat''5i8 '"^'^' 
of  Dartmouth  College  v.  Woodward} 

It  may  well  be  doubted  whether  any  decision 
ever  delivered  by  any  court  has  had  such  a  per- 
vading operation  and  influence  in  controlling 
legislation  as  this.  The  legislation,  however,  so 
controlled,  has  been  that  of  the  States  of  the 
Union.  The  decision  is  founded  upon  that  clause 
of  the  Constitution  which  declares  "  That  no 
State  shall  make  any  law  impairing  the  obliga- 
tion of  contracts."  ^ 

1  4  Wheat.  518.  2  Art.  I,  sec.  10. 


392  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkctcui.;  VIII.         Dartmouth  College   existed   as   a  corporation 
jjurtmouth  Col.         I      ^  charter  ^ranted  by  the  British  Crown  to 

l<'<je\. Woodward,  O  J 

4  Wheat.  518.  its  trustees  in  New  Hampshire,  in  the  year  1760. 
This  charter  conferred  upon  them  the  entire 
governing  power  of  the  college,  and  among  other 
powers  that  of  filling  up  all  vacancies  occurring 
in  their  own  body,  and  of  removing  and  appoint- 
ing tutors.  It  also  declared  that  the  number  of 
trustees  should  forever  consist  of  twelve,  and  no 


more. 

After  the  Revolution,  the  Legislature  of  New 
Hampshire  passed  a  law  to  amend  the  charter, 
to  improve  and  enlarge  the  corporation.  It  in- 
creased the  number  of  trustees  to  twenty-one, 
gave  the  appointment  of  the  additional  members 
to  the  Executive  of  the  State,  and  created  a 
board  of  overseers  to  consist  of  twenty-five  per- 
sons, of  whom  twenty-one  were  also  to  be  ap- 
pointed by  the  Executive  of  New  Hampshire. 
These  overseers  had  power  to  inspect  and  con- 
trol the  most  important  acts  of  the  trustees. 

The  Supreme  Court,  reversing  the  decision  of 
the  Superior  Court  of  New  Hampshire,  held  that 
the  original  charter  constituted  a  contract  be- 
tween the  Crown,  in  whom  the  power  was  then 
vested,  and  the  trustees  of  the  college,  which 
was  impaired  by  the  act  of  the  Legislature  above 
referred  to.  The  opinion,  to  which  there  was 
but  one  dissent,  establishes  the  doctrine  that  the 
act  of  a  government,  whether  it  be  by  a  charter 
of  the  Legislature  or  of  the  Crown,  which  creates 
a  corporation,  is  a  contract  between  the  State 
and  the  corporation,  and  that  all  the  essential 


THE    SUPREME    COURT.  393 

franchises,  powers,  and  benefits  conferred  upon  lecture  vhi. 
the  corporation  by  the   charter   become,  when  ^^'"■"»"""'  <^'"'- 
accepted  by  it,  contracts,  within  the  meaning  of  4  wheat,  sis. 
the  clause  of  the  Constitution  referred  to. 

I  cannot  here  go  into  the  great  argument  by 
which  this  proposition  was  supported,  nor  enter 
into  a  minute  statement  of  the  class  of  subjects 
which  by  the  rulings  of  this  case  became  con- 
tracts protected  by  the  Constitution.  The  opin- 
ion has  been  of  late  years  much  criticised,  as 
including  wdth  the  class  of  contracts  whose 
foundation  is  in  the  legislative  action  of  the 
States,  many  which  were  not  probably  intended 
to  be  so  included  by  the  framers  of  the  Con- 
stitution. And  it  is  undoubtedly  true  that 
the  Supreme  Court  itself  has  been  compelled  of 
late  years  to  insist  in  this  class  of  cases  upon 
the  existence  of  an  actual  contract  by  the  State 
with  the  corporation,  when  relief  is  sought 
against  subsequent  legislation. 

The  main  feature  of  the  case,  namely,  that  a  statutory  con- 
State  can  make  a  contract  by  legislation,  as  well  *'*^^*^' 
as  in  any  other  way,  and  that  in  no  such  case 
shall  a  subsequent  act  of  the  Legislature  inter- 
pose any  effectual  barrier  to  its  enforcement, 
where  it  is  enforceable  in  the  ordinary  courts  of 
justice,  has  remained.  The  result  of  this  prin- 
ciple has  been  to  make  void  innumerable  acts 
of  State  legislatures,  intended  in  times  of  disas- 
trous financial  depression  and  suffering,  to  pro- 
tect the  people  from  the  hardships  of  a  rigid 
and  prompt  enforcement  of  the  law  in  regard  to 
their  contracts,  and  to  prevent  the  States  from 


394 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lkctukk  VIII. 

Statutory  con- 
tracts. 


Gibbonsy. Of/den, 
9  Wheat.  1. 


Regulation  of 
commerce. 


repealing,  abrogating,  or  avoiding  by  legislation 
contracts  entered  into  with  other  parties. 

This  decision  has  stood  from  the  day  it  was 
made  to  the  present  hour  as  a  great  bulwark 
against  popular  effort  through  State  legislation 
to  evade  the  payment  of  just  debts,  the  per- 
formance of  obligatory  contracts,  and  the  gen- 
eral repudiation  of  the  rights  of  creditors.  I 
cannot  even  refer  here  to  the  numerous  decisions 
by  the  Supreme  Court  of  the  United  States,  of 
the  subordinate  courts  of  the  Government,  and 
the  highest  courts  of  the  States  themselves,  in 
which,  under  the  influence  of  this  decision,  the 
principle  of  the  Constitution  that  no  State  shall 
pass  any  law  impairing  the  obligation  of  con- 
tracts has  been  upheld  for  the  protection  of  those 
contracts. 

With  the  case  of  Gibbons  v.  Ogden,^  which 
has  always  been  considered  a  leading  one,  com- 
menced a  series  of  decisions  which  has  continued 
down  to  the  term  of  the  court  just  ended,  con- 
struing the  third  clause  of  section  8,  Article  I, 
of  the  Constitution  of  the  United  States.  The 
language  of  this  clause  is  that  "  Congress  shall 
have  power  to  regulate  commerce  with  foreign 
nations,  and  among  the  several  States,  and  with 
the  Indian  tribes." 

There  has  not  been,  during  the  history  of  the 
Government,  any  serious  question  or  difficulty 
about  the  exercise  of  the  power  by  Congress  to 
regulate  commerce  with  the  Indian  tribes.     The 


1  9  Wheat.  1. 


THE    SUPREME    COURT.  31; 

few  laws  which  that  body  has  found  it  necessary  lectdrk  viii. 
to  pass  in  reorard  to  trade   and   intercourse  with  ^^««"''»'^'""  ^^ 

i  o  commerce. 

the  Indians  have  given  rise  to  very  few  con- 
troversies before  the  courts.  The  power  to  regu- 
late commerce  with  foreiarn  nations  has  neces- 
sarily  occupied  the  attention  of  the  legislative 
body,  and  the  questions  arising  under  it  have 
principally  been  as  to  the  construction  of  the 
statutes,  with  an  occasional  contest  as  to  the 
power  to  regulate  immigration  into  the  various 
States  from  foreign  countries. 

But,  as  regards  the  regulation  of  commerce 
among  the  States,  Congress  has  signally  failed 
in  providing  any  general  system,  or  in  enacting 
any  very  important  laws  upon  the  subject.  In 
point  of  fact,  the  commerce  in  existence  which 
could  be  regulated  with  any  profit,  or  called  for 
it  at  the  time  the  Constitution  was  formed,  was 
that  upon  the  ocean,  carried  on  by  sailing  vessels, 
and  it  was  not  until  the  origin  of  the  steamboat, 
making  the  great  rivers  of  the  country  equal  in 
carrying  capacity  to  seas,  with  the  superadded 
power  of  steam  to  make  them  useful,  that  inter- 
state commerce  became  a  matter  of  much  con- 
sequence. Afterwards  the  invention  of  railroads 
increased  the  magnitude  of  this  kind  of  traffic, 
so  that  in  relative  importance  to  foreign  com- 
merce it  is  now  so  much  superior  that  I  dare 
not,  without  consulting  the  statistics,  undertake 
to  state  what  it  is. 

Very  soon  after  the  introduction  of  the  steam- 
boat, whose  use  was  accompanied  by  great  dan- 
gers in  the  navigation  of  the  interior  rivers  of 


396  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  VIII.     the   coimtrj,  Congress  began  to  legislate  upon 
Regulation  of       ^j      gubiect,  and   finally  established,  some  forty 

commerce.  j        '  ^  '  •/ 

or  fifty  years  ago,  a  system  of  laws  regulating 
their  construction  and  navigation.  The  various 
acts  passed  from  time  to  time  also  required  that 
the  masters  and  pilots  of  these  vessels  should  be 
regularly  examined  as  to  their  qualifications  and 
licensed  by  officers  appointed  by  the  General 
Government.  They  also  prescribed  with  great 
minuteness  what  safeguards  they  should  keep  on 
board  in  the  way  of  life-saving  implements  and 
small  boats,  knd  limited  the  number  of  passen- 
gers, thus  taking  special  care  of  their  comfort 
and  safety. 

But  in  relation  to  railroads,  whose  owners 
were  corporations  under  charters  from  the  dif- 
ferent States  of  the  Union,  such  legislation  as 
was  needful  has  been  left  by  Congress  to  the 
States  who  chartered  them,  or  through  whose 
territory  they  extended. 

This  inaction  of  the  Congress  of  the  United 
States,  which  it  was  asserted  could  alone  estab- 
lish regulations  for  the  control  of  railroads  in 
conducting  transportation  of  persons  and  prop- 
erty through  more  States  than  one,  thus  coming 
within  the  definition  of  the  phrase  "  interstate 
commerce,"  has  at  length  been  superseded  by  a 
very  important  statute,  called  the  Interstate 
Commerce  Law,  passed  at  the  recent  session. 
These  railroad  corporations,  the  necessity  and 
value  of  which  to  meet  the  wants  of  this  great 
country  grew  so  rapidly,  asserted  for  a  long 
time   that    by  virtue    of   the    charters    granted 


THE    SUPREME    COURT.  397 

them  by  the   States,   they   were   exempt    from  lecturk  viii.  ' 
nearly  all  legislative  control  over  their  business,  .Q^^'^r'.""  "^ 
their  contracts,  or  the  manner  in  which   their 
transportation  should  be  conducted. 

In  the  cases  of  Munn  v.  Illinois,^  Chicago, 
Burlington  &  Quincy  Railroad  v.  loiva,'^  and  Feik 
V.  Chicago  &  Noi'tliiDestern  Baihoad,^  decided  at 
the  same  time,  it  was  held  by  the  Supreme  Court 
that  as  common  carriers  they  were  subject  to 
appropriate  regulation  of  the  manner  in  which 
their  business  should  be  conducted,  by  legislative 
authority.  But  these  decisions  left  undecided 
the  question  how  far  this  legislative  power  of 
regulation  belonged  to  the  States,  and  how  far  it 
was  in  the  Congress  of  the  United  States. 

The  case  of  Gibbons  v.  Ogden,  above  referred 
to,  originated  in  an  attempt  of  the  State  of  New 
York  to  pass  laws  which  affected  free  navigation 
upon  the  Hudson  River  by  steamboats.  With 
the  idea  of  rewarding  Fulton  and  Livingston  for 
the  invention  by  the  former  of  the  new  method 
of  propulsion  by  steam,  a  statute  was  passed 
giving  to  them  the  exclusive  right  of  navigating 
that  river  with  boats  thus  propelled.  Other 
persons  coming  into  the  business  of  transporta- 
tion with  boats  of  a  similar  character,  contested 
this  right  to  such  exclusive  privilege,  and  were 
sued  for  infringing  it  in  those  waters. 

The  questions  arising  in  that  case  were 
argued  with  great  ability,  Mr.  Webster  being 
one  of  the  counsel  engaged  in  the  case,  and  one 

1 94  U.  S.  113.  2  94  U.  S.  155.  »  94  U.  S.  164. 


398 


LECTURES    OX    CONSTITUTIONAL    LAW. 


Lecture  VIII. 
Rcf^ilation  of 
commerce. 


of  the  best  considered  opinions  of  the  court  was 
delivered  b}^  Chief  Justice  Marshall.  It  is  not 
important  here  to  detail  the  substance  of  that 
argument ;  but  the  two  questions  that  were 
mostly  discussed  related  to  the  following  con- 
clusions which  were  reached  by  the  court :  — 

First.  That  this  statute  was  an  exercise  of 
the  power  of  regulating  commerce  among  the 
States,  which  had  been  confided  to  Congress  by 
the  Constitution. 

Second.  That  inasmuch  as  Congress  had 
passed  laws  authorizing  the  licensing  of  vessels 
for  the  coasting  trade,  which  authorized  them 
to  navigate  all  the  waters  within  the  jurisdiction 
of  the  United  States  capable  of  being  used  for 
that  purpose,  this  act  was  an  exercise  of  the 
power  conferred  by  the  clause  of  the  Federal 
Constitution  concern  in  2:  commerce  among;  the 
States,  and  that  Congress  having  occupied  the 
field  by  its  own  legislation,  this  necessarily 
excluded  the  action  of  the  State  upon  the 
subject. 

While  the  opinion  of  the  court  undertakes  to 
ascertain  what  kind  of  commerce  must  be  regu- 
lated exclusively  by  Congress,  it  also  seems  to 
concede  that  there  may  be  a  class  of  regulations 
affecting  it,  when  carried  on  between  the  States, 
which  would  be  valid  in  the  absence  of  any  ac- 
tion by  Congress.  But  the  case  rested  in  the 
end  upon  the  proposition  that  such  a  principle 
could  not  be  applied  to  the  case  then  before  the 
court,  because  Congress  had  acted  upon  the 
subject,  having  passed  a  law  or  made  a  regula- 


THE    SUPREME    COURT.  .^99 

tion  which  was  inconsistent  with  tlie  statute  of  lkptukk  vni. 
the  State  of  New  York  crranting  this  exclusive  ^"■""'^''""  "^ 

"  o  commerce. 

privilege  to  Livingston  and  Fulton. 

In  the  subsequent  case  of  Willson  v.  Black-  wiiho,,  v.  luark- 
bird.  Creek  Marsh  Co.:  the  principle  was  laid  rt^J^'^ef -i^'''' 
down,   that  in   a  class   of  cases,  local  in  their  state  le-isiation 

1  ,  1    J  •  !•/■,•  •     ,         I     ■  to  affect  interstate 

character,  regulations  attecting  interstate  com-  commerce, 
merce  may  be  enacted  by  the  States  in  the  ab- 
sence of  the  exercise  of  that  power  by  Congress. 
That  proposition,  which  in  a  subsequent  stage 
of  the  history  of  the  court  was  very  much  con- 
troverted, and  upon  which  it  had  been  divided 
until  within  recent  years,  has  led  to  much  un- 
certainty as  to  the  validity  of  laws  passed  by 
the  States  of  the  Union.  This  doubtful  condi- 
tion of  affairs  can  hardly  yet  be  considered  to 
be  at  an  end.  The  great  necessit}^  of  some  well- 
defined  rule  in  regard  to  these  matters,  in  the 
absence  of  any  Congressional  regulation  of  com- 
merce, is  evinced  by  the  fact  that  scarcely  a 
session  of  the  Supreme  Court  of  the  United 
States  has  passed  within  the  last  twenty-five 
years,  in  which  some  case  has  not  been  brought 
before  it,  wherein  the  validity  of  laws  passed  by 
the  States  of  the  Union,  or  ordinances  of  muni- 
cipalities made  under  the  authority  of  some 
State  laws  affecting  commerce,  has  not  been 
brought  up  and  controverted,  and  become  the 
subject  of  serious  consideration. 

I  venture  to  hope,  however,  that  some  of  the 
decisions  discussing  these  questions,  made  during 

1  2  Pet.  245. 


400 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  VIII.  the  term  of  the  court  just  expired,  have  brouglit 
fo'rffertTnterstate  ^^  ^^  ^  Substantial  Unanimity  upon  these  subjects, 
commerce.  and  havc  established  a  reasonable  degree  of  pre- 

cision in  the  definition  of  the  regulations  of  in- 
terstate commerce  exclusively  w^ithin  the  control 
of  Congress,  and  what  legislation  remains  to  the 
States  where  Congress  has  taken  no  action  in 
regard  to  the  matter.  Wabash,  St.  Louis  &c. 
RailiDay  v.  Illinois ;^  Fargo  v.  Michirjan;'^  Phila- 
delphia &  Southern  Steamship   Co.  v.  Pennsyl- 


vania. 


Importance  of 

these  decisions, 
especially  as 
affecting  inter- 
state commerce. 


The  importance  of  the  subject,  and  the  ne- 
cessity of  a  true  construction  of  this  clause  of 
the  Constitution,  may  be  seen  when  we  consider 
the  trouble  among  the  States  between  the  time 
of  the  closing  of  the  revolutionary  war  and  the 
adoption  of  that  instrument,  in  regard  to  their 
interstate  commerce,  and  to  burdens  and  ob- 
structions placed  upon  it  by  each  of  the  States 
for  what  they  regarded  as  their  own  interest, 
without  reference  to  the  general  good.  Indeed, 
these  considerations  were  among  the  principal, 
if  not  the  most  weighty,  which  induced  its  for- 
mation. And  the  cases  to  which  I  have  referred 
as  coming  before  the  Supreme  Court  of  the 
United  States,  are  ample  evidence  of  what  the 
States  would  now  do,  if  they  had  the  power,  in 
crippling  the  interstate  commerce  of  this  coun- 
try, by  imposing  burdens  upon  its  exercise  ;  and 
the  efforts  of  the  States,  endeavoring  to  shift 
the  burden  of  taxation  from  their  own  shoulders 


1 118  U.  S.  557. 


2  121  U.  S.  230. 


8  122  U.  S.  326. 


THE    SUPREME    COURT.  1 01 

and  impose  it  upon   the  property,  rights,  and  lkc^tukk  viii. 
interests  of  others  could  only  end  in  the  destruc-  J'"!'^"''-'^".'^*:  "f 

'J  these  decisions, 

tion  of  the  Union  and  the  total  suppression  of  especially  as 

.  I        c  Till  "1  affecting  iiiter- 

the  tree  and  valuable  commerce  now  carried  on  gt^te  commerce, 
between  the  States. 

The  relations  of  the  Indian  tribes  to  the  States  The  Indians, 
and  to  the  Federal  Government  have  often  been 
before  the  Supreme  Court  of  the  United  States, 
whose  judgments  have  largely  influenced  the 
course  of  legislation  by  Congress,  as  well  as  the 
States,  in  regard  to  those  tribes.  The  first  case 
involving  those  relations  was  that  of  the  Clierokee  Cherokee  Nation 
Nation  v.  Georgia,^  in  which  the  court,  consid- p^^  ^'"•'^*"' 
ering  the  general  subject,  held  that  these  tribes, 
although  occupying  a  semi-independent  position, 
which  enabled  them  to  make  treaties  with  the 
United  States,  were  neither  States  of  the  Union 
nor  foreign  States,  in  the  sense  of  the  Constitu- 
tion, wdiich  confers  jurisdiction  upon  the  Supreme 
Court  in  controversies  between  a  State  or  the 
citizens  thereof  and  foreign  States,  citizens,  or 
subjects.  It  declared  that  these  tribes  were, 
owing  to  their  peculiar  conditions,  wards  and 
pupils  of  the  nation,  and  largely  under  its  con- 
trol. 

In  the  succeeding  case  of  Worcester  v.  Georgia}  Worcester  y. 
the  same  proposition  is  advanced,  and  it  was  ^^^^''''"''  ^  ^^*' 
held  that  they  were   independent  of  the  laws 
and  government  of  the  State  within  which  they 
might  as  a  tribe  be  located.      This  latter  case 
was  one  in  which  the  State  of  Georgia,  having 

1  6  Pet.  1.  2  6  Pet.  616. 


402 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  VIIL 
Worcester  v. 
Georgia,  6  Pet. 
515. 


passed  a  statute  extending  the  jurisdiction  of  its 
laws  over  the  Cherokee  lands,  indicted  and  im- 
prisoned Worcester,  a  missionary  of  some  Christian 
church,  who  had  settled  among  those  Indians, 
for  a  violation  of  a  law  of  the  State.  He  was 
convicted  by  the  State  courts  and  sent  to  prison. 
On  a  writ  of  error  to  the  Supreme  Court  of  the 
United  States  it  was  held  that  the  State  courts 
of  Georgia  had  no  jurisdiction  over  the  Indian 
tribes,  or  the  land  which  they  had  held  in  pos- 
session from  time  immemorial. 

This  principle  seems  to  have  settled  the  inde- 
pendence of  those  tribes  of  State  legislation  and 
State  jurisdiction  generally,  but  it  afterwards 
came  to  be  questioned  what  power  the  Govern- 
ment of  the  United  States  or  Congress  could 
exercise  over  such  Indians.  This  matter  came 
up  in  United  States  v.  Kagama}  The  whole 
iTagama,  118 U.S.  g^]3Jg(3^  there  was  fully  reviewed,  and  the  propo- 
sition finally  established  that  "  while  the  Gov- 
ernment of  the  United  States  has  recosrnized  in 
the  Indian  tribes  heretofore  a  state  of  semi- 
independence  and  pupilage,  it  has  the  right 
and  authority,  instead  of  controlling  them  by 
treaties,  to  govern  them  by  acts  of  Congress; 
they  being  within  the  geographical  limit  of  the 
United  States,  and  being  necessarily  subject  to 
the  laws  which  Congress  may  enact  for  their 
protection  and  for  the  protection  of  the  people 
with  whom  they  come  in  contact.  The  States 
have  no  such  power  over  them  as  long  as  they 
maintain  their  tribal  relations." 


United  States  v. 


1  118  U.  S.  375. 


THE    SUPREME    COURT.  403 

This  settled  a  difficult  and  vexatious  question,  lectuke  viii. 
and  one  very   important  to  the  Indians  them- ^^"'''''' '''^''!'„''„''" . 
selves  as  well  as  to  the  citizens  of  the  United  •'^75. 
States  who  are  brought  in  contact  with  them. 

Perhaps  the  two  most  important  decisions  of  slavery.   Fngi- 
the  Supreme  Court  that  have  been  delivered  in  ^'^*^  '^'^^^s- 
many  years  grew  out  of    the  agitation  of   the 
subject  of  slavery.     The  long  and  continued  dis- 
cussion  of   that  topic,  in  and   out  of  Congress, 
commencing  at  a  time  not  within  the  memory 
of  any  one  in  this  audience,  and  prolonged  up 
to  the  close  of  the  late  civil  war,  which  was  the 
cause  of  that  war,  the  most  destructive  that  the 
history  of  mankind  presents,  almost  necessarily 
brought  before  the  great  judicial  tribunal  of  the 
nation  grave  questions  in  regard  to  the  constitu- 
tional power  of  Congress  over  the  subject.    With 
the  exception,  however,  of  Prigg  v.  Pennsylvania  ^  pruia  v.  Penn- 
(in  which  an  act  of  Congress  to  enable  the  own-  «?''"""^"'  '^  Pet. 
ers  of  fugitive  slaves  who  had  fled  from  service 
and    got  beyond    the    borders    of   the   State   in 
which   such   owners  resided,  was  held   to  be   a 
proper  exercise  by  Congress  of  the  provisions  of 
the  Constitution  for  the  return  of  persons  held 
to  service  in  the  States  to  which  they  belonged, 
and  which   itself  excited   much   comment),  Vaa  The  Bred  Scou 
Dred  Scott  decision-  overshadowed  all  others  on  ^'"^'^.^^How.m 
the  subject,  in  the  importance  of  the  principles 
which  it  laid  down,  and  in  the  immense  influence 
which  it  had  upon  the  history  of  the  country. 

Dred  Scott,  a  slave,  having  been  taken  from 

1  16  Pet.  539.  2  jyred  Scott  v.  Sandfonl  19  How.  393. 


404  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  VIII.  the  State  of  MissoTiri,  in  which  laws  authorizing 
Ccse^i9How*393  ^hivery  prevailed,  by  his  master  with  his  family 
into  the  Territory  of  Minnesota,  in  which  slavery 
was  forbidden,  was  afterwards  carried  back  by 
that  master  to  the  State  of  Missouri.  Scott  as- 
serted that  having  been  voluntarily  carried  by 
his  master  into  a  government  where  slavery 
was  not  recognized,  he  thereby  became  a  free 
man,  and  that  Sandford,  his  owner,  in  exercising 
restraint  over  his  personal  liberty  was  a  tres- 
passer. He  therefore  brought  suit  to  establish  his 
freedom,  and  the  case  came  in  regular  order  in 
the  Supreme  Court  of  the  United  States,  which, 
after  some  controversy  in  regard  to  the  jurisdic- 
tion of  that  court,  finally  decided  that  it  had 
jurisdiction  to  entertain  the  appeal.  It  then 
proceeded  to  decide  the  question  of  the  effect  of 
the  residence  of  Scott,  with  the  consent  of  his 
master,  in  the  free  Territory  of  Minnesota.  It 
held  that  there  existed  no  power  in  the  Congress 
of  the  United  States  to  pass  any  laws  for  the 
government  of  a  Territory  of  the  United  States, 
by  which  owners  of  slaves  could  be  prevented 
from  carrying  them  there  and  making  it  their 
residence,  and  still  retaining  the  same  power 
and  control  over  their  slaves  which  they  had  in 
the  States  where  slavery  was  established. 

This  decision  was  made  very  soon  after  Con- 
gress had  passed  a  statute  for  the  organization 
of  territorial  governments  for  Kansas  and  Ne- 
braska, and  the  question  whether  slavery  should 
be  excluded  from  those  Territories  or  not  by  the 
act  agitated  the  public  mind  to  a  degree  perhaps 


THE    SUriiEME    COURT.  405 

unknown  since  the  formation  of  the  Constitu-  lecture  vhl 
tion.  To  pass  a  law  recognizing  as  valid  the  [iae^^'^How.m 
institution  of  slavery  in  these  Territories  was 
not  only  a  violation  of  the  strongest  feelings  of  a 
large  portion  of  the  people  of  the  United  States, 
but  it  was  necessarily  a  repeal  of  what  was  called 
the  compromise  on  that  subject  at  the  time  that 
the  Territory  of  Missouri  was  admitted  as  a  State. 
At  that  time  the  same  excited  controversy  ex- 
isted, and  was  only  settled  by  a  provision  that 
in  future,  slavery  should  not  exist  north  of  a 
line  corresponding  with  the  southern  line  of 
Missouri,  extending  westward,  namely,  the  par- 
allel of  36''  30'  north  latitude.  The  decision  in 
the  Dred  Scott  Case,  that  Congress  had  no  power 
to  pass  any  law  forbidding  slavery  in  any  of  the 
Territories  of  the  United  States,  from  which  it 
necessarily  resulted  that  the  Missouri  Compro- 
mise law  was  unconstitutional,  added  to  the 
flames  of  popular  excitement. 

I  do  not  need  to  go  over  the  history  of  the 
contest  wdiich  led  to  the  attempted  secession  of 
eleven  of  the  slave  States  of  the  Union,  and  to 
the  civil  war  of  four  years  which  followed  this 
effort  to  secede.  The  unparalleled  excitement 
of  the  public  mind,  brought  about  by  the  act 
organizing  the  Territories  of  Kansas  and  Ne- 
braska, which  repealed  the  Missouri  Compromise 
law,  so  far  from  being  mitigated  by  the  Dred 
Scott  decision,  added  fuel  to  the  flame.  It  was 
charged  that  the  decision  was  merely  a  partisan 
effort  to  aid  in  the  establishment  of  slavery  in 
the  rich  soil  of  Kansas,  and  it  added  force  to 


4:06  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkgture  VIII.  tlie  determined  purpose  of  those  opposed  to  the 
'cZe%KoT-mJ^^^^^^^^^  progress  of  slavery,  to  prevent  it.  If 
that  statute  had  not  been  passed  it  is  not  within 
the  capacity  of  human  wisdom  to  tell  how  long 
the  great  contest  over  human  slavery  within  the 
limits  of  the  United  States  might  have  been 
postponed. 

This  decision  has  never  been  reconsidered  in 
the  Supreme  Court  of  the  United  States.  Its 
operation  upon  public  opinion  was  to  incite  to 
additional  ardor  the  efforts  of  those  who  desired 
the  emancipation  of  the  slaves ;  and,  although 
the  decision  itself  was  of  no  value  and  only 
precipitated  the  evils  which  it  was  intended 
to  avoid,  the  civil  war  brought  about  by  these 
events  resulted  in  the  abolition  of  slavery 
throughout  the  entire  extent  of  the  United 
States,  and,  of  course,  the  Dred  Scott  decision 
became  a  useless  incumbrance  in  the  reports  of 
that  court. 
The  Thirteenth         At  the  closc  of  the  war  the  public  sentiment 

Amendment.  ^£    ^\^q^q    ^|^q    J^^^^J    COuductcd    it    tO    a    SUCCCSsful 

termination  required  certain  amendments  to  the 
Constitution,  the  first  of  which,  the  Thirteenth, 
established  the  abolition  of  slavery  forever  within 
all  the  dominions  over  which  the  United  States 
had  jurisdiction.  It  was  soon  found,  however, 
that  the  sudden  gift  of  freedom  to  over  four 
millions  of  human  beings,  who  had  been  slaves, 
and  who  were  unprepared  by  education  or  train- 
ing to  assert  their  rights  or  protect  themselves 
against  those  -who  had  been  their  masters  for 
generations  past,  required  some  additional  safe- 


THE    SUPREME    COURT.  40' 


guards  in  the  Constitution,  wliicli  would  operate  i.KrTUKK  vni. 

Tho  Thirteeni 
Ainendiuent. 


as  a  protection  to  them  against  those  masters,  ^^^^  rinrteentii 


or  the  acts  of  the  States  themselves  readmitted 
into  the  Union.  This  induced  the  passage  of  the 
Fourteenth  Amendment,  which  declared  all  these  -riie  FunrtRPiuh 
former  slaves  to  be  now  citizens  of  the  United  A'"*-""^™'^"^- 
States,  and  entitled  to  all  the  privileges  and  im- 
munities of  such  citizens.  It  further  enacted 
provisions  for  the  equality  of  rights  of  all  per- 
sons, intending  thereby  to  secure  the  rights  of 
this  depressed  race,  and  to  protect  them  from 
unjust  and  unequal  laws  which  might  be  passed 
by  the  States  for  the  purpose  of  their  oppression. 

A  short  experience  seemed  to  prove  that  even  The  Fifteenth 
these  two  amendments,  the  one  abolishing  slavery  Ainendmeut. 
and  the  other  with  the  provisions  mentioned, 
were  inadequate  to  secure  the  purpose  which  the 
people  had  in  view,  that  of  guaranteeing  equal 
rights  to  all  persons,  including  former  slaves. 
The  Fifteenth  Amendment  was  therefore  passed, 
which  declared  that  no  discrimination  in  regard 
to  the  right  of  suffrage  should  be  made  in  any 
State  on  account  of  race,  color,  or  previous  con- 
dition of  servitude. 

These  three  amendments  to  the  Constitution,  construction  of 
the  Thirteenth,  Fourteenth,  and  Fifteenth,  were  ?,'"^"'.;'"'"";^ '" 

'  '  '  7//r  ,sla lighter 

rapidly  passed  through  Congress  and  ratified  by  House  cases. 
the  States.  They  have  been  the  subject  of 
many  decisions  of  the  Supreme  Court  of  the 
United  States,  with  regard  to  their  construction 
and  their  effect  upon  enactments  of  the  State 
legislatures,  which  have  been  supposed  to  be  in 
conflict  with    them.      The   most    important   of 


408  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  vih.     these    ciiscs,  and    perhaps    the    first    one  which 

Construction  of  '^  i        i  •    i      i 

amendments  in     Came  Deiore  the  court,  and  which,  by  reason  of 
The  si,m;/hter      ^|^^   Questions   involvcd  and  the   conrse  of   the 

House  Cases.  ^ 

argument,  required  a  construction  of  all  three 
of  these  amendments,  were  77ie  Slaughter 
House  Cases,  so  called,  reported  in  16  Wall. 
36.  They  grew  out  of  an  act  of  the  legis- 
lature of  Louisiana,  passed  since  it  had  been 
recognized  as  a  State  of  the  Union  after  the 
close  of  the  civil  war.  This  statute,  assuming 
to  regrulate  the  business  of  slaug-htering;  animals 
for  food  within  the  limits  of  the  city  of  New 
Orleans,  and  of  the  landing  of  live  animals  as 
they  came  into  the  city,  created  a  corporation 
upon  which  it  conferred  the  exclusive  right  of 
killing  animals  for  food  within  that  city.  It 
directed  the  place  where  they  should  be  landed, 
the  place  where  they  should  be  slaughtered, 
made  full  and  complete  regulations  for  the  main- 
tenance of  a  public  slaughter-house  by  this  cor- 
poration, at  which  all  butchers  must  slaughter 
the  animals  whose  flesh  they  intended  to  sell, 
required  this  corporation  to  provide  all  the  con- 
veniences necessary  for  this  purpose,  and  made 
proper  restrictions  upon  the  price  which  should 
be  charged  therefor. 

After  a  while  the  butchers  of  the  city,  who 
considered  this  monopoly  an  invasion  of  their 
personal  rights,  brought  suit  to  enjoin  the  exer- 
cise of  this  authority  by  the  slaughter-house 
company.  The  case  came  finally  to  the  Supreme 
Court  of  the  United  States,  upon  the  ground 
that   by   the    three    amendments    to    the    Con- 


THE    SUPREME    COURT.  409 

stitiition,   to  which   I   have   just   referred,   the  lecture  viil 
exercise  of  this  power  by  a  State  legislature  is  f>'-t^"«tion  of 

i.  J  o  amendments  m 

forbidden.     The   whole    subject  was    very  iwWy  Tho.  sinufihter 
argued  in  that  court,  and  the  range  of  discus-    ""**^  ^"*^'' 
sion  was  very  wide. 

At  the  close  of  the  civil  war  there  were 
many  very  wise  and  patriotic  statesmen  who 
had  come  to  the  conclusion  that  the  powers 
left  with  the  States  in  the  original  formation 
of  the  Constitution,  by  which  they  were  enabled 
to  combine  and  organize  into  a  formidable  con- 
federacy for  the  overthrow  of  the  Government 
and  the  destruction  of  the  Union,  had  been  the 
source  of  a  protracted  and  terrible  war,  which 
was  just  terminated  by  the  re-establishment  of 
the  General  Government  in  all  its  original 
powers.  They  therefore  felt,  that,  in  the  amend- 
ments to  the  Constitution  which  were  deemed 
necessary  for  the  reconstruction  of  this  Union, 
which  if  not  broken  was  very  much  shattered, 
these  powers  of  the  States  should  be  curtailed 
in  their  capacity  to  bring  about  another  such 
catastrophe.  Many  of  these  men  were  in  Con- 
gress when  the  resolutions  for  these  amendments 
were  adopted,  and  proposed  to  the  States  for 
their  ratification.  The  members  of  that  body 
undoubtedly  differed  among  themselves  as  to  the 
effect  to  be  attained,  and  the  manner  in  which  it 
was  to  be  accomplished  by  these  three  amend- 
ments. When  this  case  came  up,  the  first  in 
which  the  Supreme  Court  was  called  upon  to 
construe  them,  the  opinions  of  the  judges,  of 
lawyers,  and  of   statesmen,  were    divergent  in 


410 


LECTURES    ON    CONSTITUTIONAL    LAW. 


liECTURE  VIII. 

Construction  of 
amendments  in 
The  Slav(/ktcr 
House  Cases. 


regard  to  the  principles  which  should  govern 
that  construction. 

These  views  are  represented  in  the  opinions 
filed  in  the  case  mentioned,  the  opinion  of  the 
court  being  fully  concurred  in  by  five  of  the 
judges.  The  court,  after  speaking  of  the  fact 
that  the  civil  war  disclosed  that  the  true  danger 
to  the  perpetuity  of  the  Union  was  in  the  capac- 
ity of  the  States  to  organize,  combine,  and  con- 
centrate all  the  powers  of  a  State  and  all 
contiguous  States  to  resistance  to  the  General 
Government,  said :  — 

"Unquestionably  this  has  given  great  force 
to  the  argument,  and  added  largely  to  the  num- 
ber of  those  who  believe  in  the  necessity  of  a 
strong  National  Government.  But,  however 
pervading  this  sentiment,  and  however  it  may 
have  contributed  to  the  adoption  of  the  amend- 
ments we  have  been  considering,  we  do  not  see 
in  those  amendments  any  purpose  to  destroy 
the  main  features  of  the  general  system.  Under 
the  pressure  of  all  the  excited  feeling  growing 
out  of  the  war,  our  statesmen  have  still  believed 
that  the  existence  of  the  States  with  powers  for 
domestic  and  local  government,  including  the 
regulation  of  civil  rights  —  the  rights  of  person 
and  property  —  was  essential  to  the  perfect 
working  of  our  complex  form  of  government, 
though  they  have  thought  proper  to  impose  ad- 
ditional limitations  on  the  States,  and  to  confer 
additional  power  on  that  of  the  United  States. 
But  whatever  fluctuations  may  be  seen  in  the 
history  of  public  opinion  on  this  subject  during 


THE    SUPREME    COURT.  411 

the  period  of  our  national  existence,  we  think  it  lkcturk  viii. 
will  be  found  that  this  court,  so  far  as  its  f unc- ^'"''7'^'":"  "^ 

■'  ainendineiits  in 

tions  required,  has  always  held  with  a  steady  Thr  simujiucr 
and  an  even  hand  the  balance  between  State  ""*'^  ""*^*" 
and  Federal  power,  and  we  trust  that  such  may 
continue  to  be  the  history  of  its  relation  to  that 
subject  so  long  as  it  shall  have  duties  to  perform 
which  demand  of  it  a  construction  of  the  Con- 
stitution, or  of  any  of  its  parts."  ^ 

Although  this  decision  did  not  meet  the  ap- 
proval of  four  out  of  nine  of  the  judges  on 
some  points  on  which  it  rested,  yet  public  senti- 
ment, as  found  in  the  press  and  in  the  universal 
acquiescence  which  it  received,  accepted  it  with 
great  unanimity ;  and  although  there  were  in- 
timations that  in  the  legislative  branches  of  the 
Government  the  opinion  would  be  reviewed,  and 
criticised  unfavorably,  no  such  thing  has  oc- 
curred in  the  fifteen  years  which  have  elapsed 
since  it  was  delivered.  And  while  the  question 
of  the  construction  of  these  amendments,  and 
particularly  the  Fourteenth,  has  often  been  be- 
fore the  Supreme  Court  of  the  United  States, 
no  attempt  to  overrule  or  disregard  this  elemen- 
tary decision  of  the  effect  of  the  three  new  con- 
stitutional amendments  upon  the  relations  of 
the  State  governments  to  the  Federal  Govern- 
ment has  been  made ;  and  it  may  be  considered 
now  as  settled  that,  Avith  the  exception  of  the 
specific  provisions  in  them  for  the  protection  of 
the  personal  rights  of  the  citizens  and  people  of 

1  Slaughter  House  Cases,  16  Wall.  36,  82. 


412 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  VIII. 
Construction  of 
amendments  in 
The  Slmighter 
House  Cases. 


Kilbortrn  v. 
Thompson. 


the  United  States,  and  tlie  necessary  restrictions 
upon  the  power  of  the  States  for  that  purpose, 
with  the  additions  to  the  powers  of  the  General 
Government  to  enforce  those  provisions,  no  sub- 
stantial change  has  been  made.  The  necessity 
of  the  great  powers,  conceded  by  the  Constitu- 
tion originally  to  the  Federal  Government,  and 
the  equal  necessity  of  the  autonomy  of  the 
States  and  their  power  to  regulate  their  domestic 
affairs,  remain  as  the  great  features  of  our  com- 
plex form  of  government. 

The  only  other  decision  of  the  Supreme  Court 
to  which  I  shall  call  your  attention  is  that  of 
Kilhoimi  V.  Thompson,  103  U.  S.  168.  It  is 
principally  remarkable  as  establishing  the  right 
of  a  party  to  recover  damages  for  an  unlawful 
imprisonment  by  the  express  order  of  the  House 
of  Representatives.  That  body,  as  well  as  the 
Senate,  had  been  in  the  habit  of  calling  wit- 
nesses before  them  to  testify  in  regard  to  various 
matters  concerning  Avhich  an  investigation  had 
been  ordered  by  one  or  the  other  of  those  bodies. 
They  also  seem  to  have  exercised  without  hesi- 
tation the  power  to  punish  by  fine  and  im- 
prisonment any  witness  who  refused  to  answer 
questions  which,  by  order  of  the  particular  body 
authorizing  the  investigation,  had  been  pro- 
pounded to  him,  and  without  much  if  any  re- 
gard to  the  limitation  upon  their  right  to 
exercise  this  power. 

Under  a  resolution,  which  recited  that  the 
Government  was  a  creditor  of  the  banking  firm 
of  Jay  Cooke  &  Company,  then  in  bankruptcy 


THE    SUPREME    COURT.  413 

by  the  decree  of  the  District  Court  of  the  United  lfx;t.urk  viii. 
States  for  the  Eastern  District  of  Pennsylvania,  -/hompjon.' 
and  that  settlements  had  been  made  adverse  to 
the  interests  of  the  United  States  in  that  court, 
a  special  committee  of  the  House  of  Representa- 
tives was  appointed  by  the  Speaker  to  inquire 
into  the  matter,  together  with  the  history  of  a 
real  estate  pool,  in  which  that  firm  was  said  to 
be  involved.  In  the  progress  of  the  investiga- 
tion Mr.  Kilboiirn,  who  was  a  real  estate  dealer 
in  the  city  of  Washington,  was  called  before  the 
committee  and  required  to  make  statements  in 
regard  to  his  dealings  with  various  persons  who 
had  had  transactions  with  him,  and  to  produce 
his  books  for  the  general  inspection  of  the  com- 
mittee. He  declined  to  do  this,  and  being  brought 
before  the  House  he  was  ordered  to  make  answer. 
Still  further  declining,  the  House  ordered  him  to 
be  imprisoned,  and  that  the  Speaker  issue  his 
warrant  to  the  sergeant-at-arms  to  commit  him 
for  contempt. 

Mr.  Kilbourn  was  held  in  confinement  under 
this  order  for  some  time,  but  was  finally  released 
on  a  writ  of  habeas  corjnis  issued  by  the  Chief 
Justice  of  the  Supreme  Court  of  the  District  of 
Columbia.  He  then  brought  suit  against  the 
sergeant-at-arms,  by  whom  he  was  kept  in 
prison,  and  against  the  members  of  the  com- 
mittee who  were  active  in  procuring  the  order 
of  the  House  for  his  punishment.  On  a  de- 
murrer to  the  answer  of  the  defendants,  which 
set  up  this  order  of  the  House  as  their  defence, 
the  Supreme  Court  of  the  District  of  Columbia 


414  LECTURES    ON    CONSTITUTIONAL    LAW. 

lectuue  VIII.     held  the  answer  to  be  good ;  but  on  a  writ  of 
Kiiboura  v.         ^^^^^^  ^^  ^j^^  Supreme  Court  of  the  United  States 

that  decision  was  reversed. 

The  opinion  goes  into  a  thorough  examination 
of  the  history  of  this  dass  of  questions  in  various 
cases  before  the  House  of  Commons  of  Great 
Britain,  which  were  afterwards  carried  to  the 
courts  of  that  country,  and  comes  to  the 
conclusion  that,  while  in  that  country,  by 
reason  of  the  history  of  the  Parliament,  and 
of  its  original  possession  of  full  judicial  powers, 
the  House  of  Commons  could  punish  for 
contempt,  there  is  no  inherent  authority  in 
any  purely  legislative  body,  apart  from  that 
remnant  of  judicial  power  remaining  in  the 
Parliament,  to  punish  parties  for  offences  of 
that  character. 

Referring  to  the  Constitution  of  the  United 
States,  under  which  alone  Congress,  as  an  entire 
body  or  either  branch  of  it,  could  exercise  any 
such  power,  it  is  declared  that  there  is  a  total 
absence  of  any  general  grant  of  such  authority ; 
but  inasmuch  as  each  branch  of  Congress  had 
certain  specific  powers  to  make  orders  which  re- 
quired the  examination  of  witnesses,  that  in  that 
class  of  cases,  where  a  witness  refused  to  testify, 
the  House  could  enforce  this  duty  by  fine  and 
imprisonment  as  a  punishment  for  contempt. 
Those  occasions  were  limited  to  such  cases  as 
punishment  of  its  own  members  for  disorderly 
conduct,  or  failure  to  attend  sessions,  or  in  cases 
of  contested  elections,  or  in  regard  to  the  qualifi- 
cations of  its  own  members,  or  in  case  of  an 


THE    SUPREME    COURT.  415 


effort  to  impeach  an  officer  of  the  Government,  lecturk  viil 

Kilbourn  v. 
Thompson. 


and  perhaps  a  few  others.  Kdhonm  v. 


It  was  held  that  neither  House  had  any  right 
to  organize  an  investigation  into  the  private 
affairs  of  a  citizen,  and  that,  except  in  a  case  in 
which  the  Constitution  expressly  conferred  upon 
the  one  body  or  the  other  powers  which  were 
in  their  nature  somewhat  judicial,  and  which 
required  the  examination  of  witnesses,  they  pos- 
sessed no  power  to  compel  by  fine  or  imprison- 
ment, or  both,  the  attendance  of  such  witnesses, 
and  answers  to  interrogatories  which  did  not 
relate  to  some  question  of  which  it  had  jurisdic- 
tion. 

This  decision,  which  ultimately  resulted  in  the 
recovery  of  a  large  judgment  by  Mr.  Kilbourn 
against  the  sergeant-at-arms,  which  sum  was 
paid  by  an  appropriation  made  by  the  Congress 
of  the  United  States  out  of  the  Treasury,  was 
everywhere  received  with  satisfaction.  It  has 
been  followed  in  the  States  of  the  Union  where 
similar  questions  have  constantly  arisen,  and  is 
undoubtedly,  on  account  of  the  assertion  by  it  of 
the  right  of  the  citizen  to  be  protected  against 
the  legislative  body,  and  to  be  proceeded  against 
for  any  offence  only  in  the  judicial  branch  of  the 
Government,  one  of  the  most  important  that 
has  been  made  in  recent  years.  It  is  also  im- 
portant as  being  in  some  sense  a  direct  control 
by  the  Supreme  Court  of  the  United  States  over 
the  decisions  and  acts  of  one  of  the  branches  of 
the  legislative  department  of  the  Government, 
made  without  authority  of  the  law. 


416 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  VIIL 
KUbourn  v. 
Thompson. 


It  is  proper  also  to  observe  that  the  court 
decided  that  the  members  of  the  committee  who 
had  propounded  these  questions  to  Kil bourn, 
and  at  whose  instance  the  House  passed  the 
resolution  for  his  imprisonment,  were  not  liable 
to  his  action  for  damages,  on  the  ground  that 
what  they  did  came  within  the  constitutional 
provision  that  "  senators  and  representatives 
.  .  .  shall  in  all  cases,  except  treason,  felony, 
and  breach  of  the  peace,  be  privileged  from  arrest 
during  their  attendance  at  the  session  of  their 
respective  Houses,  and  in  going  to  and  returning 
from  the  same ;  and  for  any  speech  or  debate  in 
either  House,  they  shall  not  be  questioned  in 
any  other  place."     Art.  I,  sec.  6. 

This  court,  of  which  we  have  been  speaking, 
whether  we  take  the  character  of  the  suitors 
that  are  brought  before  it,  or  the  importance  of 
the  subjects  of  litigation  over  which  it  has  final 
jurisdiction,  may  well  be  considered  one  of  the 
highest  that  the  world  has  ever  seen.  It  has 
the  power  to  bring  States  before  it.  States  which 
some  of  our  politicians  have  been  in  the  habit 
of  considering  sovereign,  not  only  when  they 
come  voluntarily,  but  by  judicial  process  they 
are  subjected,  in  certain  classes  of  cases,  to  the 
iudijfment  of  the  court.  Whatever  these  States 
may  have  been  at  the  time  of  the  formation  of 
the  Constitution,  they  now  number  their  inhabi- 
tants by  millions,  and  in  wealth  and  civilization 
are  equal  to  many  of  the  independent  sovereign- 
ties of  Europe. 


THE    SUPREME    COURT.  417 

The  subject  matter  of  which  this  court  has  lecture  vhi. 
iurisdiction  is  the  construction  and  exposition  Qf  ^'"  ^'^''^er  to  be 

J  I  apprtiheiided  from 

the   Constitution   of  the   United    States,   which  the  exen-ise  of  the 

,1,1  /.».  r-'j  -IT  c  ^       power  to  construe 

controls  the  ananas  oi  sixty  mil hons  oi  people.  tije(_;ousiitution. 
Its  every-day  business,  almost,  is  to  pass  upon 
the  question  of  conflicting  rights  and  jurisdic- 
tions between  the  States  and  the  United  States, 
and  between  the  laws  framed  by  each  of  this 
class  of  political  bodies.  Its  judges  hold  their 
offices  for  life,  unless  removed  by  impeachment. 
But  one  attempt  has  been  made  in  the  history 
of  the  Government  to  impeach  a  member  of  that 
court,  and  that  effort  failed. 

It  has  been  said  that  these  powers  may  be 
dangerous  to  the  people,  and  to  the  other  depart- 
ments of  the  Government,  but  the  answer  to 
this  is  both  true  and  perfect.  The  judicial 
branch  of  the  Government,  of  which  the  Supreme 
Court  is  the  head,  is  the  weakest  of  all  the  three 
great  departments  into  which  the  power  of  the 
nation  is  divided.  It  has  no  arni}^,  it  has  no 
navy,  and  it  has  no  purse.  It  has  no  patronage, 
it  has  no  officers,  except  its  clerks  and  marshals, 
and  the  latter  are  appointed  by  the  President 
and  confirmed  by  the  Senate.  They  are  the 
officers  to  whom  its  processes  are  sent  for  the 
enforcement  of  its  judgments,  but  they  may  be 
removed  at  any  time  by  the  Executive.  The 
clerks,  whom  the  judges  in  some  form  or  other 
are  permitted  to  appoint,  have  salaries  or  com- 
pensation regulated  by  the  legislature.  The 
clerk  who  may  receive  $20,000  or  more,  in  fees, 
must  pay  all  but  $3500  of  such  receipts  into  the 


418  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  viil     Treasury  of   the    United    States.      The   judges 
No  danger  in  the  ^hemselves  are   dependent  upon   appropriations 

exercise  by  the  ^  ^  i.  x       i 

Court  of  its  power  made  by  the  legislature  for  the  payment  of  the 
Constitution.  ^     salaries  which  support  them  while  engaged  in 
the  functions  of  their  office. 

It  is,  then,  so  far  as  the  ordinary  forms  of 
power  are  concerned,  by  far  the  feeblest  branch 
or  department  of  the  Government.  It  must  rely 
upon  the  confidence  and  respect  of  the  public 
for  its  just  weight  and  influence,  and  it  may  be 
confidently  asserted  that  neither  with  the  peojole, 
nor  the  country  at  large,  nor  the  other  branches 
of  the  Government,  have  there  ever  been  found 
wanting  that  respect  and  confidence.  It  is  one 
of  the  best  tributes  which  can  be  paid  to  the 
American  nation,  a  tribute  which  it  deserves 
above  all  others,  even  of  Anglo-Saxon  descent, 
and  which  can  be  paid  to  no  other  race,  that  it 
always  submits  to  the  law  as  expounded  by  its 
judiciary.  In  all  the  excitements  of  bitter  con- 
tests, involving  great  financial  interests,  power, 
position,  and  even  political  existence,  in  fact 
everything  which  could  properly  be  brought 
within  its  judicial  cognizance,  the  people  have 
always  felt  that  their  interests  were  safely  in- 
trusted to  its  charge. 

That  the  court  may  long  continue  to  deserve 
this  confidence,  as  it  has  for  the  past  hundred 
years,  must  be  the  desire  of  every  patriotic 
citizen. 


NOTES  UPON  LECTURE  VIII. 


Mr.  Justice  Miller's  treatment  of  the  sub-  lecture  viii. 
ject  of  this  lecture  is  so  thorough,  and  his  ref- 
erence to  cases  so  recent,  as  to  leave  little  to  be 
said.     The   subjects  will  be  considered   in  the 
order  in  which  they  are  treated  in  the  lecture. 

1.    Detail  of  a  Justice  to  other  duties. 

In  addition  to  the  cases  of  Chief  Justice  Jay  Detail  of  a  justice 
and  Chief  Justice  Marshall,  referred  to  \,y  u^^ ,  ^o  otx^ev  am^,.. 

Justice  Miller,  there  have  been  two  notable 
instances,  in  more  recent  days,  of  the  detail,  if 
I  may  call  it  so  for  want  of  a  better  word,  of 
justices  of  the  Supreme  Court  to  the  performance 
of  duties  outside  of  the  judicial  power  imposed 
upon  them  by  the  Constitution. 

In  January,  1871,  the  British  Cabinet  made 
confidential  approaches  to  the  Government  of 
the  United  States  with  a  view  to  ascertain 
whether  some  practicable  way  could  not  be 
found  for  disposing  of  the  pending  questions 
between  the  two  governments,  including  the 
Alabama  Claims,  the  Fisheries,  and  the  Oregon 
boundary.  This  resulted  in  an  agreement  to 
organize  a  joint  commission,  which  should  be 
charged  with  dealing  with  these  subjects;  and 

419 


420  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  VIII.  Oil  the  9th  of  February,  just  one  month  after 
to  other  dutief'^  the  negotiations  opened,  President  Grant  nomi- 
nated to  the  Senate  five  commissioners  on  the 
part  of  the  United  States,  of  whom  one  was 
"  Samuel  Nelson,  an  associate  justice  of  the 
Supreme  Court  of  the  United  States."  The 
message  with  the  nominations  was  accompanied 
by  a  brief  on  "  Plurality  of  Offices  "  for  the  use 
of  the  Senate.  The  first  among  several  cases 
given  was  that  of  Mr.  Jay;  and  it  was  said  that 
he  w^as  nominated  to  the  Senate  "  as  Envoy 
Extraordinary  of  the  United  States  on  the  16th 
of  April,  1794 ;  was  confirmed  on  the  19th  of 
that  month;  went  to  London,  and  there  signed 
the  treaty  known  as  Jay's  Treaty  on  the  29th 
of  November,  1794 ;  arrived  in  New  York  on 
the  28th  of  May,  1795 ;  and  resigned  the  office 
of  chief  justice  on  the  29th  of  the  following  June." 
I  trust  it  will  not  be  thought  improper  for 
me  to  add  a  fact  within  my  own  knowledge, 
that  Mr.  Justice  Nelson  proved  to  be  a  most 
valuable  member  on  that  commission.  His  coun- 
sels were  always  judicious,  and  his  views  were 
generally  adopted  by  his  colleagues.  His  labors 
there  lasted  until  after  the  end  of  that  term  of 
court,  and  with  them  closed  the  work  of  a  long 
and  honorable  career  of  public  service.  He  was 
retired  at  his  own  request  in  the  following 
autumn,  and  died  in  December,  1873. 

The  second  instance  of  such  detail  was  brought 
about  by  the  Act  of  January  29,  1877,^  under 

1  19  Stat.  227,  c.  37, 


NOTES    UPON    LECTURE   VIII.  421 

which  the  Electoral  Commission  was  established  lecture  vm. 
to  decide  "  all  questions  upon  or  in  respect  of  Jolther^^itils '*^* 
double  returns"  in  the  Presidential  election  of 
that  year.  This  body  consisted  of  five  members 
of  the  Senate,  five  members  of  the  House,  and 
five  associate  justices  of  the  Supreme  Court,  of 
whom  Mr.  Justice  Miller  was  one.  It  is  unnec- 
essary to  make  further  references  to  so  recent 
an  historic  fact. 

2.    Suits  ag €11718 1  a  State. 

The  provision  in  the  Constitution  conferring  Suits  against  a 
upon  the  Federal  courts  judicial  power  in  "  con- 
troversies between  two  or  more  States "  was 
adopted  from  the  Articles  of  Confederation, 
which  provided,  in  Article  IX,  that,  "  The 
United  States  in  Congress  assembled  shall  also 
be  the  last  resort  on  appeal  in  all  disputes  and 
differences,  now  subsisting  or  that  may  here- 
after arise,  between  two  or  more  States  concern- 
ing, boundary,  jurisdiction,  or  any  other  cause 
whatever."  Elaborate  provisions  were  made  for 
regulating  the  exercise  of  this  jurisdiction  which 
need  not  be  described.  This  power  was  invoked 
six  times  during  the  existence  of  the  Confedera- 
tion ;  but  in  only  one  case  were  the  proceedings 
carried  to  final  judgment.  All  were  questions 
of  territorial  jurisdiction. 

The  first  in  date  related  to  the  sovereignty 
over  the  territory  now  known  as  Vermont,  then 
claimed  by  New  York  on  the  one  hand,  and  New 
Hampshire  on  the  other.  The  settlers  and  oc- 
cupiers   of   the   soil    drove    out  the  New  York 


422  LECTURES    ON    CONSTITUTIOXAL    LAW. 

lectuke  VIII.  officials  by  force  in  1775,  and  refused  to  recog- 
Suits  a-aiust  a  ^^-^.g  ^^y.  authority  in  New  Hampshire.  The 
State  of  New  York  initiated  proceedings  in 
Congress  under  the  Articles  of  Confederation. 
The  State  of  New  Hampshire  responded,  but 
the  actual  settlers  refused  to  come  into  court, 
although  censured  by  Congress.  We  have  the 
authority  of  Mr.  Hamilton  ^  for  saying  that 
their  attitude  caused  some  anxiety.  Vermont 
had  made  up  its  mind  to  be  independent. 
Massachusetts  assented  to  the  recognition  of  its 
independence  in  1781 ;  New  Hampshire  fol- 
lowed in  the  same  year;  New  York  in  1790; 
and  the  controversy  was  closed,  without  a  judi- 
cial determination,  by  its  admission  into  the 
Union  in  1791.^ 

The  controversy  between  Virginia  and  Penn- 
sylvania as  to  the  boundary  line  between  them 
was  before  Congress  in  1779  by  its  own  initia- 
tion. It  does  not  appear  that  either  State  in- 
voked its  interference.  It  was  settled  between 
the  parties  by  mutually  agreeing  to  and  run- 
ning, on  the  face  of  the  soil,  the  line  now 
known  as  "Mason  and  Dixon's  line." 

The  controversy  between  Pennsylvania  and 
Connecticut  concerning  the  sovereignty  of  lands 
on  the  east  branch  of  the  Susquehanna,  is  the 
only  one  that  was  ever  brought  to  trial  and 
judgment  under  the  Articles  of  Confederation. 
An  account  of  the  proceedings  is  given  in  the 
Appendix  to  volume  131  of  the  United  States 
Reports,  at  pages  liv.-lviii. 

1  Federalist,  No.  7.  2  1  stat.  191. 


NOTES    UPON    LECTURE    VIII.  423 

In  the  proceedings  instituted  by  tlie  State  of  lecture  viii. 
New  Jersey  against  the  State  of  Virginia  in  l;';;^  ^«*'"'' ^ 
1784,  the  apparent  object  was  to  prevent  Con- 
gress from  accepting  the  cession  by  New  York, 
Virginia,  and  Connecticut  of  the  Northwestern 
lands.  Nothing  was  done  beyond  the  presenta- 
tion of  the  petition. 

The  dispute  between  Massachusetts  and  New 
York  was  carried  to  the  point  of  selecting  judges 
to  be  appointed  by  Congress,  and  was  then  set- 
tled by  the  parties. 

That  between  South  Carolina  and  Georgia 
reached  the  same  point,  and  got  no  farther,  if 
the  record  is  to  be  trusted.  It  is  apparently 
the  same  controversy  which  was  settled  by  an 
agreement  between  the  parties,  which  will  be 
found  in  South  Carolina  v.  Georgia,  93  U.  S. 
5,6. 

It  was  found  both  convenient  and  just  to 
have  a  tribunal  vested  with  jurisdiction  to  deter- 
mine such  controversies ;  and  so,  when  the  Con- 
stitution was  adopted,  it  contained  a  provision 
that  the  judicial  power  should  extend  to  con- 
troversies between  two  or  more  States. 

In  Hans  v.  Louisiana,  134  U.  S.  1,  which  "was 
an  action  against  the  State  of  Louisiana  brought 
by  one  of  its  citizens  to  recover  on  coupons 
annexed  to  bonds  of  the  State,  it  was  held  that 
a  State  could  not,  without  its  consent,  be  sued 
in  a  Circuit  Court  of  the  United  States,  upon  a 
suggestion  that  the  case  was  one  arising  under 
the  Constitution  and  laws  of  the  United  States  ; 
and  CJiisholm   v.    Georgia,    2    Dall.    419,    com- 


424 


LECTURES    ON    CONSTITUTIOlSrAL    LAW. 


Lecture  VIII. 
Suits  against  a 
State. 


mented  on  by  Judge  Miller  in  this  chapter,  was 
substantially  overruled,  the  court  saying  that  the 
views  of  Mr.  Justice  Iredell,  who  dissented  from 
the  judgment,  "  were  clearly  right." 


3.    Some  Recent  Cases  additional  to   those  cited 
hy  Mr.  Justice  Miller. 

Mandamua.  In  Dunlap  V.  Black  ^  the  question  before  the 

court  was  whether  mandamus  should  issue  to  the 
Commissioner  of  Pensions,  commanding  him  to 
increase  a  pension.  Mr.  Justice  Bradley  reviewed 
at  length  the  cases  of  Marhury  v.  Madison,^  Ken- 
dall V.  United  States,^  Decatur  v.  Paulding,'^  United 
States  V.  Schurz,^  and  others,  and  as  a  result  of 
the  examination  laid  down  this  rule :  "  The  court 
will  not  interfere  by  mandamus  with  the  execu- 
tive officers  of  the  Government  in  the  exercise 
of  their  ordinary  official  duties,  even  where  those 
duties  require  an  interpretation  of  the  law,  the 
court  having  no  appellate  power  for  that  pur- 
pose ;  but  when  they  refuse  to  act  in  a  case  at 
all,  or  when,  by  special  statute  or  otherwise,  a 
mere  ministerial  duty  is  imposed  upon  them, 
that  is,  a  service  which  they  are  bound  to  per- 
form without  further  question,  then,  if  they  re- 
fuse, mandamus  will  be  issued  to  compel  them." 

1  128  U.  S.  40.  2  1  Cranch.  137. 

8  12  Pet.  524.  *  14  Pet.  497. 

6  102  U.  S.  378.  See  also  Brashearv.  Mason,  6  How.  92  ;  Good- 
rich V.  Guthrie,  17  How.  284  ;  Commissioner  of  Patents  v.  Whiteleij, 
4  Wall.  522  ;  Georgia  v.  Stanton,  6  Wall.  50  ;  Gaines  v.  Thompson, 
7  Wall.  347 ;  Butterworth  v.  Hoe,  112  U.  S.  50. 


NOTES    UPON    LECTURE    VIII.  425 

The  recent  cases  relating  to  interstate  com-  lecture  viii. 
merce  will  be  referred  to  more  at  leno-th  in  connec-  ^"^'''■^***^  ^°^- 

°  merce. 

tion  with  Lecture  IX.  The  latest  case  referred  to 
by  Mr.  Justice  Miller  is  PMladdj^hia  &  Southern 
Steamship  Co.  v.  Pennsylvania}  The  leading 
cases  since  that  time  are  recited  in  the  note 
below.^  The  great  number  of  them  is  an  evi- 
dence of  the  importance  of  the  subject,  and  of 
the  pertinacity,  alluded  to  more  than  once  by 
Mr.  Justice  Miller,  with  which  the  States  try  to 
get  round  this  provision  of  the  Constitution,  and 
secure  for  themselves  some  advantages  in  viola- 
tion of  its  spirit. 

In  Cook  V.  United  States  ^  the  statutes  relatino;  Indians, 
to  the  organization  of  the  Indian  Territory,  and 
more  especially  the  courts  of  the  United  States 
and  their  criminal  jurisdiction  within  it,  are 
reviewed  at  length,  both  in  the  arguments  and 
in  the  opinion.  In  Gon-shay-ee' s  Case^  it  was 
held  that  the  Act  of  March  3,  1885,^  was  enacted 

1  122  U.  S.  326. 

2  Sands  v.  Manistee  River  Improvement  Co.,  123  U.  S.  288  ;  Smith 
V.  Alabaina,  124  U.  S.  465  ;  Pembina  Mining  Co.  v.  Pennsijlvania, 
125  U.  S.  181  ;  Bowman  v.  Chicago  &  NortMcestern  liailicay  Co., 
125  U.  S.  465  ;  California  v.  Central  Pacific  Railroad  Co.,  127  U.  S. 
1 ;  Ratterman  v.  Western  Union  Tel.  Co.,  127  U.  S.  411 ;  Leloup 
V.  Port  of  Mobile,  127  U.  S.  640 ;  Kidd  v.  Pearson,  128  U.  S.  1 ; 
Nashville,  Cfinttonnoga  &c.  Railway  Co.  v.  Alabama,  128  U.  S.  96; 
Stoutenhuryh  v.  Ilennick,  129  U.  S.  141  ;  Pennsylvania  Railroad 
Co.  V.  Miller,  132  U.  S.  75 ;  Western  Union  Telegraph  Co.  v.  Ala- 
bama, 132  U.  S.  472  ;  Leisy  v.  Hardin,  135  U.  S.  100  ;  Lyng  v. 
Michigan,  135  U.  S.  161;  McCall  v.  California,  136  U.  S.  104; 
Norfolk  &  Western  Railroad  Co.  v.  Pennsylvania,  136  U.  S.  114 ; 
Minnesota  v.  Barber,  1.36  U.  S.  313  ;  Brimmer  \.  Rebman,  138  U.  S. 

78 ;  PuUman'^s  Palace  Car   Co.  v.  Pennsylvania,   141  U.  S.  18  ;  " 

Crutcher  v.  Kentucky,  141  U.  S.  47. 

3  138  U.  S.  157.       «  130  U.  S.  343.       5  23  Stat.  385,  c.  341,  §  9. 


426 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  VIII. 
Indians. 


Slavery. 


Diplomatic  privi- 
lege. 


to  transfer  to  Territorial  courts  established  by 
the  United  States  the  jurisdiction  to  try  the 
crimes  described  in  it^  when  sitting  as  and  exer- 
cising the  functions  of  a  Territorial  court,  and 
not  of  a  Circuit  or  District  Court  of  the  United 
States;  and  in  MayfielcCs  Case"^  it  is  held  that 
a  member  of  the  Cherokee  nation,  committing 
the  crime  of  adultery  in  territory  assigned  to 
that  tribe,  is  not  subject  to  trial  for  that  crime 
by  the  courts  of  the  United  States. 

In  Clay  v.  Field  ^  it  appeared  that  two  persons 
were  partners  in  working  a  plantation  in  Ten- 
nessee. One  of  them  died  before  the  civil  war, 
and  the  other  retained  possession  of  it  in  good 
faith,  and  also  of  all  the  slaves  upon  it,  and 
continued  to  operate  it  for  what  he  thought  was 
for  the  interest  of  the  deceased  as  well  as  him- 
self. The  war  broke  out,  the  plantation  was  in 
the  theatre  of  the  conflict,  and  at  its  close  the 
slaves  were  free.  In  view  of  all  the  circum- 
stances, the  court  decided  that  the  surviving 
partner  was  not  accountable  for  the  value  of  the 
slaves,  but  that  he  was  accountable  for  the  fair 
rental  value  of  the  property,  including  the  slaves 
while  they  were  slaves. 

In  Baiz  Case,  135  U.  S.  403,  the  petitioner 
Baiz,  being  sued  in  the  Circuit  Court  of  the 
United  States  for  the  Southern  District  of  New 
York,  set  up  a  constitutional  privilege,  as  a  dip- 
lomatic representative,  to  be  exempt  from  the 


1  Murder,  manslaughter,  rape,  assault  with  intent  to  kill,  and 
larceny. 

2  141  U.  S.  107.  8  138  u.  S.  464. 


NOTES    UrON    LECTURE    YIII.  427 

jurisdiction  of  that  court.  Evidence  was  offered  lecture  viii. 
on  both  sides  in  the  Supreme  Court.  This  chiini  J^ii'i^™^''*^  p"^>- 
being  overruled,  he  applied  to  the  Supreme 
Court  for  a  writ  of  prohibition  or  mandamus  to 
restrain  the  Circuit  Court  from  exercising  fur- 
ther jurisdiction  in  the  case.  It  was  held  that, 
in  the  absence  of  a  certificate  from  the  Secretary 
of  State  that  he  was  such  a  representative,  he 
was  not  entitled  to  the  immunity  from  suit 
except  in  the  Supreme  Court  which  is  granted 
to  such  persons  by  the  Constitution.  It  was 
also  held  that,  on  such  an  application,  the  respon- 
dent was  called  upon  to  produce  any  evidence 
within  his  knowledge  to  overcome  the  peti- 
tioner's proof  of  his  privilege ;  and  that  the 
court  could  accept  the  certificate  of  the  Depart- 
ment of  State  upon  the  question  at  issue,  and 
was  not  required  to  proceed  upon  argumenta- 
tive or  collateral  proof. 

In  Cooper  s  Case,  138  U.  S.  404,  on  an  appli- The  Behmg  Sea 
cation  for  a  writ  of  prohibition  to  restrain  the  ^*^^' 
District  Court  of  the  United  States  for  the  Dis- 
trict of  Alaska  from  issuing  process  upon  a 
decree  condemning  a  vessel  for  illegally  captur- 
ing seals,  the  court  held  that  it  had  jurisdiction, 
and  granted  leave  to  file  the  petition  for  the 
writ. 

In  Neagles  Case,  135  U.  S.  1,  argued  and  The  Neagu  Case. 
decided  after  this  lecture  was  delivered,  the  sub- 
ject of  the  protection  which  the  Constitution 
affords  to  the  court  when  exercising  the  judicial 
power  conferred  upon  it  was  elaborately  con- 
sidered, the  opinion  of  the  court  being  written  by 


428  LECTUliES    ON    CONSTITUTIONAL    LAW. 

Lecture  viil  Mr.  Justico  Miller.  The  lieadnotes  of  the  case, 
The  Ncacjie  Case.  ^^  reported,  which  were  also  written  by  him, 
embody  all  the  propositions  of  law  bearing 
upon  the  subject,  which  were  discussed  and 
decided  by  the  court,  and  also  make  a  suffi- 
ciently full  statement  of  the  facts  to  enable  the 
student  to  understand  exactly  what  was  before 
the  court  and  decided  by  it.  The  material  prop- 
ositions in  those  headnotes  are  the  follow- 
ing:— 

"By  virtue  of  Rev.  Stat.  §§  606,  610,  the  jus- 
tices of  the  Supreme  Court  of  the  United  States 
are  allotted  among  the  nine  circuits,  to  each 
one  of  which  a  judge  is  assigned ;  and  the  lat- 
ter section  makes  it  the  duty  of  each  judge  to 
attend  the  Circuit  Court  in  each  district  of  the 
circuit  to  which  he  is  allotted,  and  thereby  im- 
poses upon  him  the  necessity  of  travelling  from 
his  residence  to  the  Circuit  Court  which  he  is  to 
attend,  and  from  each  place  in  that  circuit  where 
the  court  is  held  to  the  other  places  where  it  is 
held.  Held,  that,  while  a  judge  is  thus  travel- 
ling to  or  from  those  places,  he  is  as  much  in 
discharge  of  his  duty  as  when  listening  to  and 
deciding  cases  in  open  court,  and  is  as  much 
entitled  to  protection  in  the  one  case  as  in  the 
other. 

"  While  there  is  no  express  statute  authorizing 
the  appointment  of  a  deputy  marshal,  or  any 
other  officer,  to  attend  a  judge  of  the  Supreme 
Court  when  travelling  in  his  circuit,  and  to 
protect  him  against  assaults  or  other  injury,  the 
general  obligation  imposed  upon  the  President 


■       NOTES    UPON    LECTURE    VIII.  429 

of  the  United  States  by  the  Constitution  to  see  lecture  viii. 
that  the  kws  be  faithfully  executed,  and  the '^^^  ^*''''^'' ^"*^- 
means  placed  in  his  hands,  both  by  the  Constitu- 
tion and  the  laws  of  the  United  States,  to  enable 
him  to  do  this,  impose  upon  the  executive  de- 
partment the  duty  of  protecting  a  justice  or 
judge  of  any  of  the  courts  of  the  United  States, 
when  there  is  just  reason  to  believe  that  he  will 
be  in  personal  danger  while  executing  the  duties 
of  his  office. 

"An  assault  upon  a  judge  of  a  court  of  the 
United  States,  while  in  discharge  of  his  official 
duties,  is  a  breach  of  the  peace  of  the  United 
States,  as  distinguished  from  the  peace  of  the 
State  in  which  the  assault  takes  place. 

"Under  the  provisions  of  Rev.  Stat.  §  788,  it  is 
the  duty  of  marshals  and  their  deputies  in  each 
State  to  exercise,  in  keeping  the  peace  of  the 
United  States,  the  powers  given  to  the  sheriffs 
of  the  State  for  keeping  the  peace  of  the  State ; 
and  a  Deputy  Marshal  of  the  United  States, 
specially  charged  with  the  duty  of  protecting 
and  guarding  a  judge  of  a  court  of  the  United 
States,  has  imposed  upon  him  the  duty  of  doing 
whatever  may  be  necessary  for  that  purpose, 
even  to  the  taking  of  human  life, 

"United  States  officers  and  other  persons,  held 
in  custody  by  State  authorities  for  doing  acts 
which  they  were  authorized  or  required  to  do  by 
the  Constitution  and  laws  of  the  United  States, 
are  entitled  to  be  released  from  such  imprison- 
ment ;  and  the  writ  of  habeas  corpus  is  the  ap- 
propriate remedy  for  that  purpose. 


430  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  VIII.  "  David  Neagle,  a  Deputy  Marshal  of  the 
The  Neayie  Case.  United  States  for  the  District  of  California,  was 
brought  by  writ  of  habeas  corpus  before«the  Cir- 
cuit Court  of  that  district,  upon  the  allegation 
that  he  was  held  in  imprisonment  by  the  sheriff 
of  San  Joaquin  County,  California,  on  a  charge 
of  the  murder  of  David  S.  Terry.  He  alleged 
that  the  killing  of  Terry  by  him  was  done  in 
pursuance  of  his  duty  as  such  deputy  marshal 
in  defending  the  life  of  Mr.  Justice  Field,  while 
in  discharge  of  his  duties  as  Circuit  Judge  of 
the  ninth  circuit.  On  the  trial  of  this  writ  in 
the  Circuit  Court  it  entered  an  order  discharg- 
ing the  prisoner,  finding  that  he  was  in  custody 
for  an  act  done  in  pursuance  of  a  law  of  the 
United  States,  and  was  imprisoned  in  violation 
of  the  Constitution  and  laws  of  the  United 
States.  The  case  being  brought  up  to  the 
Supreme  Court  by  appeal,  this  court,  on  ex- 
amining the  voluminous  testimony,  arrived  at 
the  conviction  that  there  was  a  settled  purpose 
on  the  part  of  Terry  and  his  wife,  amounting  to 
a  conspiracy,  to  murder  Mr.  Justice  Field,  on  his 
official  visit  to  California  in  the  summer  of  1889  ; 
that  this  arose  from  animosity  against  him  on 
account  of  judicial  decisions  made  in  the  Circuit 
Court  of  the  United  States  for  the  Northern 
District  of  California  in  a  suit  or  suits  to  which 
they  were  parties ;  that  the  purpose  which  they 
had  of  doing  Mr.  Justice  Field  an  injury  became 
so  well  and  so  publicly  known,  that  a  correspon- 
dence ensued  between  the  marshal  and  the 
district  attorney  of  that  district  and  the  Attor- 


NOTES    UPON    LECTURE    VIII.  431 

ne}^  General  of  the  United  States,  the  result  of  lecture  viii. 
which  was  that  Neagle  was  appointed  a  deputy  ^^^  ^^"^'*^  ^''''^ 
marshal  for  the  express  purpose  of  guarding  Mr. 
Justice  Field  against  an  attack  by  Terry  and 
his  wife  which  might  result  in  his  death ;  that 
such  an  attack  did  take  place ;  that  Neagle, 
being  there  for  the  said  purpose  of  affording 
protection,  had  just  reason  to  believe  that  the 
attack  would  result  in  the  death  of  ]\lr.  Justice 
Field  unless  he  interfered ;  and  that  he  did  jus- 
tifiably interfere  by  shooting  Terry  while  in  the 
act  of  assaulting  Mr.  Justice  Field,  whom  he 
had  already  struck  two  or  three  times.     Held, 

"(1)  That  Neagle  was  justified  in  defending 
Mr.  Justice  Field  in  this  manner; 

"  (2)  That  in  so  doing  he  acted  in  discharge 
of  his  duty  as  an  officer  of  the  United  States ; 

"(3)  That  having  so  acted,  in  that  capacity, 
he  could  not  be  guilty  of  murder  under  the  laws 
of  California,  nor  held  to  answer  to  its  courts 
for  an  act  for  which  he  had  the  authority  of  the 
laws  of  the  United  States ; 

"  (4)  That  the  judgment  of  the  Circuit  Court, 
discharo-ingi:  him  from  the  custodv  of  the  sheriff 
of  San  Joaquin  County,  must  therefore  be  af- 
firmed." 

This  case,  from  the  novelty  of  the  questions 
involved,  and  from  the  character  and  eminence 
of  the  distinguished  jurist  assaulted  by  Terry, 
naturally  excited  the  greatest  attention  through- 
out the  country.  There  was  some  difference  of 
opinion  between  members  of  the  bar  before  the 
argument.     The  elaborate  opinion  of  the  court, 


432  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  VIII.     howGver,  closed  the  doors  against   further  dis- 
The  Ncarjie  Case,  ^ussioii ;  and  it  has  been  accepted  as  affording 
to  the  court  only  the  measure  of  protection  to 
which  it  is  justly  entitled. 

Mr.  Justice  Miller  brings  his  treatment  of  the 
Thirteenth,  Fourteenth,  and  Fifteenth  Amend- 
ments only  to  The  Slaughter  House  Case.  There 
have  been  many  decisions  upon  these  amend- 
ments, made  since  that  case,  in  which  some  one 
of  them  has  been  the  suljject  of  controversy 
and  of  construction.  These  cases  are  grouped 
together  in  the  supplementary  paper,  No.  XIII, 
in  which  the  subjects  not  discussed  elsewhere 
are  treated. 


IX. 

REGULATION   OF  COMMERCE   AMONG 
THE   STATES.! 

Article  I,  Section  8,  Paragraph  3.     The  Con-  Lecture  IX. 
gress  shall  have  Power  ...  To  regulate  Commerce 
with  Foreign  Nations,  and  among  the  several  States, 
and  with  the  Indian  Tribes. 


The  text  of  this  discourse  is  one  of  the  most  Regulation  of 

commei 
States. 


important  of  the  powers  delegated  to  Congress '""^"^'^'^^  ^"^"°^ 


by  the  Constitution  of  the  United  States.  It  is 
provided  in  Article  I,  section  8,  paragraph  3,  of 
that  instrument,  as  follows  :  — 

"  The  Congress  shall  have  power,  ...  to 
regulate  commerce  with  foreign  nations,  and 
among  the  several  States,  and  with  the  Indian 
tribes." 

You  would  scarcely  imagine,  and  I  am  sure  The  importance 
you  do  not  know,  unless  you  have  given  some  ^^  *^^^  power, 
consideration  to  the  subject,  how  very  important 
is  that  little  sentence  in  the  Constitution.  It  was 
the  want  of  any  power  to  regulate  commerce, 
as  between  the  States  themselves,  and  with 
foreign  nations,  which  as  much,  and  I  am  not 
sure  but  I  am  justified  in  saying  more,  than  any 

1  This  lecture  is  Lecture  VII  of  the  Lectures  delivered  before  the 
classes  at  the  University  Law  School. 

433 


434 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  IX. 
The  importance 
of  this  power. 


Its  history. 
Action  of  Virginia 
in  178G. 


one  thing,  forced  the  States  to  form  the  present 
Constitution  in  lieu  of  the  Articles  of  Confedera- 
tion under  which  they  had  won  their  freedom 
and  established  their  independence.  It  is  diffi- 
cult now  for  us  to  fully  appreciate  how  strong 
was  the  tendency  to  separate,  to  quarrel,  and  to 
bring  their  adverse  interests  into  collision,  which 
grew  out  of  the  want  of  any  general  power  in 
the  Federal  Government,  as  it  then  existed,  to 
control  the  commercial  relations  of  the  States 
with  each  other.  A  slight  examination  in  the 
records  which  remain  to  us  of  the  conditions, 
circumstances,  and  the  discussions  which  pre- 
ceded the  formation  of  the  Constitution,  will  be 
of  service  in  enabling  us  to  better  understand 
this  subject. 

One  of  the  earliest  and  most  significant  was  a 
resolution  of  the  Virginia  legislature  of  January 
21,  1786.  The  Convention  that  framed  the 
present  Constitution  assembled  in  the  year  1787, 
so  that  this  resolution  was  passed  but  a  little 
over  a  year  before  its  meeting.  It  was  proposed 
to  confer,  by  the  action  of  the  separate  States 
composing  the  Confederation,  additional  power 
on  the  then  Congress  of  the  United  States.  This 
was  a  most  pressing  question,  the  necessity  was 
urgent,  and  the  legislature  of  Virginia  thus 
expressed  its  desire  that  there  should  be  greater 
power  placed  in  the  hands  of  the  National  Gov- 
ernment.    The  resolution  reads  as  follows  :  — 

"Resolved,  that  Edmund  Randolph,  James 
Madison  Jr.,  Walter  Jones,  St.  George  Tucker, 
and  Merriweather  Smith,  Esquires,  be  appointed 


KEGULATION    OF    COMMERCE.  435 

commissioners,  who  or  any  three  of  whom  shall  lecture  ix. 
meet  such  commissioners,  as  maybe  appointed  ^'^j!J'yg"^^""*'''°'* 
in  the  other  States  of  the  Union  at  a  time  and 
place  to  be  agreed  on,  to  take  into  consideration 
the  trade  of  the  United  States ;  to  examine  the 
relative  situations  and  trade  of  said  States ;  to 
consider  how  far  a  uniform  system  in  their  com- 
mercial regulations  may  be  necessary  to  their 
common  interest  and  their  permanent  harmony  ; 
and  to  report  to  the  several  States  such  an  act 
relative  to  this  great  object  as,  when  unani- 
mously ratified  by  them,  will  enable  the  United 
States,  in  Congress,  effectually  to  provide  for 
the  same."  ^ 

Mr.  Madison  was  undoubtedly  the  author  of  Mr.  Madison, 
that  resolution,  and  he  was  afterwards  a  mem- 
ber of  the  Convention  which  framed  the  Consti- 
tution. That  was  the  only  resolution  passed  at 
that  time,  so  that  it  is  evident  that  more  tlian  a 
year  before  that  Convention  was  finally  called, 
the  trade  and  commerce  of  the  country  occupied 
a  prominent  place  in  the  minds  of  the  Virginia 
legislature,  as  well  as  in  the  thought  of  this  dis- 
tinguished statesman,  together  with  the  promi- 
nent idea  that  there  should  be  such  regulation 
of  that  commerce  as  might  be  beneficial  to  all 
the  States,  with  a  power  to  control  it  placed  in 
the  central  authority,  weak  though  it  then  was. 
With  the  same  end  in  view  Oliver  Ellsworth  Mr.  Ellsworth, 
of  Connecticut,  a  distinguished  man  of  that  day, 
a  member  of  the  Constitutional  Convention,  and 

1  6  Elliot's  Debates,  113  (Madison  Papers). 


436 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  IX. 
Mr.  Ellsworth. 


The  Federalist. 


one  of  the  early  Chief  Justices  of  the  Supreme 
Court  of  the  United  States,  had  urged  upon  the 
people  of  his  State  to  send  delegates  to  the  Con- 
vention which  was  to  consider  the  subject  of  a 
Federal  Constitution.  His  main  argument  was 
that  the  people  of  his  State  were  suffering  from 
the  imposts  laid  upon  their  commerce  by  the 
States  of  New  York  and  Rhode  Island,  each  of 
which  had  fine  harbors  and  ports  of  entry.  Hav- 
ing succeeded  in  getting  a  Constitution  adopted 
with  this  provision  in  it,  he  was  then  elected  to 
the  State  convention  which  should  approve  or 
reject  it.  In  the  opening  of  the  discussion  in 
that  body,  in  the  first  speech  that  was  made,  he 
made  use  of  this  remarkable  language  :  — 

"Our  being  tributaries  to  our  sister  States 
is  in  consequence  of  the  want  of  a  Federal  sys- 
tem. The  State  of  New  York  raises  £60,000  or 
£80,000  a  year  by  impost.  Connecticut  con- 
sumes about  one-third  of  the  goods  upon  which 
this  impost  is  laid,  and  consequently  pays  one 
third  of  this  sum  to  New  York.  If  we  import  by 
the  medium  of  Massachusetts  she  has  an  impost, 
and  to  her  we  pay  a  tribute."  ^ 

The  Federalist,  that  remarkable  series  of 
papers  published  by  Hamilton,  Madison,  and 
Jay,  while  the  ratification  of  the  Constitution 
was  pending  before  the  people  in  their  State 
conventions,  contains,  of  course,  the  principal 
arguments  in  favor  of  the  adoption  of  that 
instrument.      To    that,    therefore,    all    persons 


1  2  Elliot's  Debates,  189. 


REGULATION    OF    COMMERCE.  437 

engaged  in  construing  the  Constitution  of  the  lecture  ix. 
United  States  naturally  look  for  a  con  tern  po- '^^' ^'^"'^^''*- 
raneous  exposition  of  it  by  the  distinguished 
statesmen  of  that  period,  two  of  whom  were 
engaged  in  its  formation,  and  who  had  no  supe- 
riors at  that  time  in  the  public  service.  In  the 
seventh  number  of  that  series  of  articles  the 
author,  in  speaking  of  the  evils  of  a  divided 
condition  of  the  States,  says :  — 

"  The  competitions  of  commerce  would  be 
another  fruitful  source  of  contention.  The 
States  less  favorably  circumstanced  would  be 
desirous  of  escaping  from  the  disadvantages  of 
local  situation,  and  of  sharing  in  the  advantages 
of  their  more  fortunate  neighbors.  Each  State, 
or  separate  confederacy,  would  pursue  a  system 
of  commercial  polity  peculiar  to  itself.  This 
would  occasion  distinctions,  preferences,  and 
exclusions,  which  would  beget  discontent.  The 
habits  of  intercourse,  on  the  basis  of  equal  priv- 
ileges, to  which  we  have  been  accustomed  from 
the  earliest  settlement  of  the  country,  would 
give  a  keener  edge  to  those  causes  of  discontent, 
than  they  would  naturally  have,  independent 
of  this  circumstance.  We  should  he  ready  to 
denominate  injuries  those  things  which  ^fere  in 
reality  the  justifiable  acts  of  independent  sover- 
eignties consulting  a  distinct  interest.''^ 
Again  the  following  language  is  used  :  — 
"  The  opportunities  which  some  States  would 
have  of  rendering  others  tributary  to  them,  by 

1  The  Federalist,  No.  7  (Hamilton). 


438  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  IX.  Commercial  regulations,  would  be  impatiently 
The  Federalist,  gubj^.i^tecl  to  by  the  tributary  States.  The 
relative  situation  of  New  York,  Connecticut, 
and  New  Jersey,  would  afford  an  example  of 
this  kind.  New  York,  from  the  necessities  of 
revenue,  must  lay  duties  on  her  importations. 
A  great  part  of  these  duties  must  be  paid  by 
the  inhabitants  of  the  two  other  States  in  the 
capacity  of  consumers  of  what  we  import.  New, 
York  would  neither  be  willing,  nor  able,  to  fore- 
go this  advantage.  Her  citizens  would  not 
consent  that  a  duty  paid  by  them  should  be 
remitted  in  favor  of  the  citizens  of  her  neigh- 
bors." ^ 

The  subject  is  recurred  to  again  in  the  twenty- 
second  letter :  — 

"  The  interfering  and  unneighborly  regula- 
tions of  some  States,  contrary  to  the  true  spirit 
of  the  union,  have,  in  different  instances,  given 
just  cause  of  umbrage  and  complaint  to  others ; 
and  it  is  to  be  feared  that  examples  of  this 
nature,  if  not  restrained  by  a  national  control, 
would  be  multiplied  and  extended  till  they 
became  not  less  serious  sources  of  animosity 
and  discord,  than  injurious  impediments  to  the 
intercourse  between  the  different  parts  of  the 
confederacy."  ^ 

Here  follows  a  sentence  remarkable  as  almost 
a  prophecy  of  what  we  have  seen  and  known  in 
our  day :  — 

"  The  commerce  of  the  German  Empire  is  in 

1  The  Federalist,  No.  7.  2  jb.  No.  22. 


REGULATION    OF    COMMERCE. 


439 


continual  trammels,  from  the  miilti[)licity  of  the  lkcture  ix 
duties  Avhich  the  several  princes  and  States  exact  ^^^  Federalist, 
upon   the   merchandises   passing   through   their 
territories,  by  means  of  which  the  fine  streams 
and  navigable  rivers  with  which  Germany  is  so 
happily  watered,  are  rendered  almost  useless."  ^ 

Now  we  know  that  Germany  submitted  to  German  zou- 
that  condition  of  affairs  until  some  fifty  or  sixty  ^^ 
years  ago,  when  that  portion  since  called  North 
Germany,  with  Prussia  as  the.  dominant  power, 
formed  what  they  called  the  ZoUverein."  This 
was  a  commercial  union  between  about  a  dozen 
of  those  States,  Dukedoms,  and  Principalities,  by 
which  it  was  arranged  that  travellers  and  goods 
of  all  kinds  might  pass  entirely  through  their 

1  The  Federalist,  No.  22,  quoting  from  the  Encyclopsedia,  art. 
Empire. 

2  The  ZoUverein  had  its  origin  in  a  customs  convention  between 
Prussia  and  the  Grand  Duchy  of  Hesse  in  1828  ;  and  other  states, 
as  they  gradually  became  convinced  of  the  advantages  afforded  by 
a  general  customs  frontier,  joined  ft  from  time  to  time  during  the 
succeeding  forty  years.  The  following  table  shows  the  progressive 
territorial  limits  of  the  ZoUverein,  which  may  be  regarded  as  the 
precursor  of  the  present  German  Empire  :  — 


Years. 

States  enterinsr  During  the  Various 
Periods. 

Area 
Square 
Miles. 

Population  of 
tile  I'nion 

Slates. 

1828 
1831 
1834 

1844 
1851 
1868 

1871 

Prussia,  Hesse  (Grand  Duchy)    . 

Hesse-Cassel 

Bavaria,  Wiirteniberg,   Saxony, 

Tburingia,  etc 

Brunswick,  Luxembourg,  etc. 
Hannover,  Oldenburg     .... 
Schleswig-Holstein,   Lauenburg, 

Mechlenburg 

Alsace-Lorraine 

112,000 
115,300 

163,900 
171. iXX) 
191,800 

205,500 
209,251 

13,295,254 
15,090,075 

23,478,120 
28,498,136 
32,559,055 

38,277.939 
40,677,950 

Encyclopfedia  Britaunica,  vol.  10,  455  (9th  ed.). 


440 


LECTUKES    ON    CONSTITUTIOI^AL    LAW. 


Lecture  IX. 
Germau  Zoll- 
verein. 


Importance  of 
this  clause  in  the 
Constitution. 


territories  with  but  one  inspection  and  one  set  of 
duties.  I  am  not  familiar  with  the  details  of 
the  treaty,  but,  as  we  all  know,  its  practical 
result  was  to  bring  together  all  the  North  Ger- 
man States  in  a  union  for  all  commercial  trans- 
actions. That  condition  of  affairs  had  existed 
but  a  few  years  when  war  broke  out  between 
Prussia  and  Austria.  The  entire  North  German 
Confederacy,  if  it  could  be  so  called,  joined 
Prussia  in  this  war,  in  which  that  country  was 
successful,  and  they  then  established  a  still  more 
intimate  relation,  forming  themselves  into  one 
kingdom  or  government.  They  then  extended 
their  Zollverein,  but  not  their  unity  of  govern- 
ment, to  South  Germany,  which  included  Bavaria 
and  Wiirtemberg,  each  of  which  was  a  rather 
large  kingdom  in  its  territorial  extent  among 
those  small  prmcipalities.  So  intimate,  how- 
ever, was  this  commercial  relation  that  those 
two  governments  followed  Prussia  in  the  sub- 
sequent war  with  France,  and  at  the  end  of  that 
war  the  present  German  Empire  was  organized. 
All  this  grew  out  of  the  original  commercial 
union,  called  the  Zollverein,  adopted  to  prevent 
discriminating  duties  and  other  troubles  which 
arise  when  the  business  relations  of  neighboring 
territories  are  interrupted  by  independent  laws 
and  regulations. 

In  the  paper  No.  41  of  the  Federalist  there  is 
another  reference  to  this  subject,  written  before 
the  adoption  of  the  Constitution,  in  which  the 
same  idea  is  expressed. 

"  The  defect  of   power  in  the  existing  con- 


KEGULATION    OF    COMMERCE.  441 

federacy  to  regulate  the  commerce  between  its  lecture  ix. 
several  members,  is  in  the  number  of  those  which  ^^po^^!^"^"**  "^ 

^  _  this  clause  in  the 

have  been  clearly  pointed  out  by  experience,  constitution. 
To  the  proofs  and  remarks  which  former  papers 
have  brought  into  view  on  this  subject,  it  may 
be  added,  that  without  this  supplemental  pro- 
vision, the  great  and  essential  power  of  regu- 
lating foreign  commerce  would  have  been 
incomplete  and  ineffectual.  A  very  material 
object  of  this  power  was  the  relief  of  the  States 
which  import  and  export  through  other  States, 
from  the  improper  contributions  levied  on  them 
by  the  latter.  Were  these  at  liberty  to  regulate 
the  trade  between  State  and  State,  it  must  be 
foreseen  that  ways  would  be  found  out  to  load 
the  articles  of  import  and  export,  during  the 
passage  through  their  jurisdiction,  with  duties 
which  would  fall  on  the  makers  of  the  latter, 
and  the  consumers  of  the  former.  We  may  be 
assured  by  past  experience,  that  such  a  practice 
would  be  introduced  by  future  contrivances ; 
and  both  by  that  and  a  common  knowledge  of 
human  affairs,  that  it  would  nourish  increasing 
animosities,  and  not  improbably  terminate  in 
serious  interruptions  of  the  public  tranquillity."  ^ 

A  further  indication  of  the  importance  which  Legislation  of 
the  States  attached  to  this  matter  is  to  be  found  ^^""^^  ^'^*"'*- 
in  the  fact  that  Rhode  Island  was  between  two 
and  three  years  in  ratifying  the   Constitution, 
after  all  the  other  States  except  North  Carolina 
had   acted  upon  the   subject.      Your  attention 

1  The  Federalist,  No.  41  (Dawson's  ed.)  ;   No.  42  all  other 
editions. 


442 


LECTUKES    ON    CONSTITUTIONAL   LAW. 


Lecture  IX. 
Legislation  of 
Rhode  Islaud. 


Legislation  of 
New  York. 


may  not  have  been  called  to  the  reason  which 
governed  Rhode  Island  in  that  matter,  but  his- 
tory shows  that  it  was  on  account  of  the  import- 
ance which  that  State  attached  to  this  power  to 
regulate  the  commerce  that  would  naturally 
seek  its  ports.  It  possessed  in  Newport  one  of 
the  finest  harbors  on  the  whole  Atlantic  coast, 
and  a  very  large  part  of  the  imports  into  the 
northern  States  of  the  Union  from  abroad  went 
through  that  town.  There  was,  of  course,  a 
heavy  tax  laid  upon  such  importations,  so  that 
this  little  State  and  its  principal  city  were  pay- 
ing their  expenses  and  living  a  jolly  life  off 
of  the  imposts  collected  on  goods  that  went 
through  its  ports  to  Connecticut,  Massachusetts, 
New  Hampshire,  and  the  adjoining  States,  for 
consumption. 

The  experience  of  the  country  since  the  adop- 
tion of  the  Constitution  lias  shown  how  wise 
were  its  framers  in  including  this  particular 
clause  which  we  are  now  considering  within  its 
provisions.  From  the  case  of  Gibbons  v.  Ogden, 
9  Wheat.  1,  189,  argued  in  the  Supreme  Court 
of  the  United  States  in  1824,  down  to  the  pres- 
ent time,  there  have  been  many  judicial  decis- 
ions upon  this  subject,  in  which  acts  of  the 
States  Avere  held  void  which  were  intended  to 
infringe  that  provision  of  the  Constitution,  and 
which  attempted  to  impose  upon  the  property 
and  goods  of  citizens  of  other  States  the  burdens 
which  the  citizens  of  the  States  making  the 
enactments  ought  themselves  to  bear.  The  case 
of   Gibbons  v.  Ogden,  in  which  the  opinion  was 


REGULATION    OF    COMMERCE.  443 

delivered  by  Chief  Justice  Marshall,  arose  under  lecture  ix. 
a   statute   of    the    State   of   New   York   which  !:^«''l?''"" '^^ 

New  York. 

seemed  to  be  intended  as  a  liberal  concession  on 
account  of  an  invention  of  great  public  value. 
That  State  granted  to  Robert  R.  Livingston  and 
Robert  Fulton,  the  inventor  of  the  steamboat, 
the  exclusive  right  of  navigating  all  the  waters 
within  its  jurisdiction  with  boats  moved  by  fire 
or  steam  for  a  term  of  years.  This  included 
the  waters  of  the  Hudson  River,  which  Avere 
then  relatively  more  important  than  they  now 
are,  because  there  were  no  railroads  or  canals. 
The  defendant  Gibbons  employed  two  steam- 
boats, running  between  New  York  and  Eliza- 
bethtown  in  the  State  of  New  Jersey,  in 
violation,  as  it  was  claimed,  of  this  exclusive 
privilege.  An  injunction  was  therefore  sought 
to  restrain  him  from  using  those  boats,  although 
they  had  been  duly  enrolled  and  licensed  under 
acts  of  Congress.  The  case  came  by  due  process 
into  the  Supreme  Court  of  the  United  States, 
where  it  was  held  that  the  statute  of  the  State 
of  New  York  was  a  regulation  of  commerce  be- 
tween the  States,  and  therefore  repugnant  to 
the  clause  of  the  Constitution  which  we  are  now 
considering,  authorizing  Congress  to  regulate 
commerce  among  the  several  States. 

From  that  time  until  the  present  the  efforts  of  Legislation  of 
the  individual  States  to  take  advantage  of  their  ^^^'^y^'^^'*- 
opportunities  to  impose  duties,  taxes,  restraints, 
and  burdens  upon  the  property  of  citizens  of  other 
States  passing  through   or  brought   into   them 
have  been  the  source  of  the  continued  exercise 


444 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  IX. 
Legislation  of 
Marylaud. 


of  the  jurisdiction  of  the  Supreme  Court  of  the 
United  States,  where  such  laws  have  in  ahnost 
every  instance  been  declared  void.  For  exam- 
ple, the  statute  in  the  case  of  Guy  v.  Baltimore, 
100  U.  S.  434,  was  an  old  sinner,  and  made  a 
very  clever  attempt  to  conceal  the  evil.  It  ap- 
peared that  the  city  of  Baltimore  owned  some 
of  the  wharves  in  that  city  at  which  vessels 
coming  to  that  port  landed :  probably  not  all, 
but  some  of  them,  and  imposed  a  certain  tax 
for  the  use  of  those  wharves.  This  was  begun 
a  great  many  years  ago,  and  was  done  by  an 
act  of  the  General  Assembly  of  Maryland,  passed 
in  1827,  and  regulations  made  thereunder  by  the 
city  authorities,  which  provided  in  effect  that  all 
articles  of  merchandise  brought  into  that  city 
and  landed  at  its  wharves,  which  were  the  prod- 
uce of  the  State  of  Maryland,  should  pay  no 
fees  on  account  of  their  use,  but  that  all  similar 
articles  brought  into  that  port  from  any  other 
State  should  pay  a  tax  for  the  use  of  the  wharf 
upon  which  it  was  landed.  Of  course  it  was  a 
small  affair,  the  main  business  at  these  wharves 
being  the  landing  of  chickens,  eggs,  potatoes, 
cabbages,  oysters,  and  other  articles  of  food  and 
things  of  that  kind,  so  that  the  sum  that  any 
one  little  sailing  vessel  had  to  pay  did  not 
amount  to  much.  Nobody,  therefore,  resisted 
its  payment  until  a  few  years  ago,  when  a  man 
was  at  last  found  who  would  stand  it  no  longer. 
In  1876  Guy,  a  resident  citizen  of  Accomac 
County  in  the  State  of  Virginia,  landed  his  ves- 
sel at  one  of  the  public  wharves,  and  when  this 


REGULATION    OF    COMMERCE.  445 


tax   was   demanded  of   him  refused  to   pay  it.  lecture  ix. 

Legislatioi 
Maryland. 


So    they    sued    him,    and    by    regular    process  ^•'"'■'*'''^^"'°  °^ 


through  their  courts  the  case  came  at  last  into 
the  Supreme  Court  of  the  United  States.  That 
court  said  that  it  did  not  matter  if  this  tax  had 
been  collected  for  so  many  years,  it  was  never- 
theless a  regulation  of  commerce  which  the 
State  could  not  make  or  authorize,  because  this 
tax  was  not  a  compensation  for  the  use  of  the 
city's  property,  but  was  a  mere  expedient  or 
device  to  foster  the  domestic  commerce  of  Mary- 
land by  means  of  unequal  and  oppressive  bur- 
dens upon  the  industry  and  business  of  other 
States.  It  was  invalid  as  a  regulation  of  com- 
merce. It  was  not  merely  intended  to  raise 
money  for  the  use  of  a  wharf,  —  that  they  had 
a  right  to  do,  and  if  they  had  laid  a  reasonable 
tax  for  its  use  and  laid  it  alike  upon  the  prod- 
uce which  came  from  every  State  in  the  Union, 
it  would  have  been  a  valid  tax  ;  but  it  was 
evident  that  it  was  intended  by  this  statute  to 
make  the  produce  and  goods  of  Virginia,  which 
lies  right  alongside,  as  well  as  that  of  the  adja- 
cent States  of  New  Jersey  and  Delaware,  which 
came  into  this  port  for  a  market,  pay  a  tax  to 
keep  up  the  wharves  and  wharfage  system  of 
that  port,  while  permitting  the  entry  of  goods 
and  produce  from  the  State  of  Maryland  free  of 
any  such  imposition.  This  was  held  to  be  a 
regulation  of  commerce,  and  though  of  nearly 
sixty  years'  standing,  to  be  void. 

If   you   will*    take    the    Constitution    of   the 
United  States  and  read  it,  or  that  part  of  it  in 


446 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  IX. 
Legislation  of 
Maryland. 


What  is  com- 
merce ? 


immediate  connection  with  this  paragraph,  you 
will  see  that  the  position  which  it  occupies  in 
that  instrument*  indicates  the  place  it  occupied 
in  the  thouarht  of  the  Convention  which  framed 

o 

it.  Article  I  is  devoted  to  the  organization  and 
powers  of  the  legislative  branch  of  the  Govern- 
ment, consisting  of  the  Senate  and  House  of 
Representatives.  Section  eight  of  the  Article 
contains  the  specific  grants  of  power  made  to 
the  Congress.  The  first  one  of  these  is  a  grant 
to  raise  money  by  taxation  for  the  support  of 
the  Government ;  the  second  is  an  authority  to 
borrow  money  for  the  same  purpose,  and  the 
third,  out  of  about  fifteen  in  number,  is  this 
clause  concernino-  the  reg;ulation  of  commerce. 

We  must  next,  in  order  to  ascertain  with  any 
philosophical  nicety  what  is  meant  by  this 
clause,  take  some  of  its  parts  into  the  field  of 
definition.  And  first  let  us  consider,  what  is 
commerce  ?  You  remember  that  the  commerce 
to  be  regulated  by  Congress  is  that  "  with 
foreign  nations,  and  among  the  several  States, 
and  with  the  Indian  tribes ; "  but  the  word 
^'  commerce  "  is  applicable  to  all  these,  and  it  is 
essential  to  have  some  idea  as  to  what  is  meant 
by  the  word.  It  is  defined  in  Gibbons  v.  Ogden, 
as  well  as  in  some  later  cases,  but  it  is  difficult 
to  give  in  any  one  sentence  its  entire  meaning 
as  employed  in  the  Constitution.  The  ordinary 
meaning  is  trade  and  traffic  —  intercourse  be- 
tween different  peoples ;  and  that  will  perhaps 
answer  for  our  purpose  as  a  general  definition  of 
the  word  as  used  in  this  clause.     But  traffic  and 


REGULATION    OF    COMMERCE.  447 


trade  are  composed  of  a  great  many  elements  lf.ctuke'ix. 

What  is 
merce  ? 


SO  far  as  the  means  are  concerned  by  which  and  ^^  ''^'^  '^  '^'^^ 


the   persons   by  and    between  whom   they  are 
carried  on. 

That  element  of  commerce  which  has  been 
the  most  frequent  subject  of  legislation  by  the 
Congress  of  the  United  States,  and  which  has 
perhaps  received  more  frequent  consideration  in 
the  courts  than  any  other,  is  what  may  be 
called  "transportation."  In  Gihhons  y.  Ogden 
the  eminent  Chief  Justice  made  a  very  elaborate 
argument  to  prove  that  navigation  was  one  of 
the  principal  elements  of  commerce,  which  Avas 
perhaps  necessary  for  him  to  do  in  that  day 
although  it  is  a  proposition  which  it  would  cer- 
tainly not  be  thought  necessary  now  to  estab- 
lish by  precedents  or  authorities.  In  fact  we 
have  gone  further  than  that,  and  we  have  said 
that  the  transportation  of  goods  and  passengers 
is  commerce.  And  in  that  view,  in  the  case  of 
the  Clinton  Bridge,  reported  in  1  Woolworth, 
150,  in  1867,  in  which  I  had  the  honor  of  deliv- 
ering the  opinion  of  the  court,  it  was  held, 
thousrh  I  believe  it  has  sometimes  been  doubted 
since,  that  since  the  railroads  of  the  country 
had  almost  superseded  the  use  of  vessels  and 
water  carriage,  they,  as  a  means  of  transporta- 
tion, constituted  an  element  of  commerce,  and 
that  it  was  within  the  power  of  Congress  to 
regulate  that  element.  There  is  this  limitation 
to  that,  however,  that  since  these  railroads  are 
generally  chartered  by  States,  and  many  of  them 
run  only  within  the  borders  of  a  single  State, 


448  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  IX.  tliG  transportation  or  commerce  over  them  is 
mercc?  '^°™'  ^^^^  ^^  ^®  ^^^  Commerce  with  foreign  nations, 
not  commerce  among  the  several  States,  and  not 
commerce  with  the  Indian  tribes,  and,  there- 
fore, not  subject  to  regulation  by  Congress. 
But  many  of  these  roads  run  through  several 
States,  and  most  of  them  make  arrangements 
to  continue  the  transportation  of  their  freight 
over  other  lines.  A  large  part  of  the  transpor- 
tation of  freight  and  passengers  in  this  country 
from  the  Pacific  to  the  Atlantic  coast,  and  vice 
versa,  is  done  in  one  vehicle  and  by  one  con- 
tinuous passage.  It  is  my  opinion  that  such 
traffic  is  subject  to  regulation  by  Congress.  The 
judgment  rendered  in  that  case  was  affirmed  by 
the  Supreme  Court  of  the  United  States,  but 
the  argument  which  I  have  presented  here,  and 
which  I  used  in  the  case  below  as  a  part  of  my 
opinion,  was  not  fully  adopted.  The  question 
was  whether  the  Congress  of  the  United  States 
had  power  to  authorize  one  of  these  railroads 
to  build  a  bridge  across  the  Mississippi  River  at 
the  town  of  Clinton,  where  two  roads,  one  on 
each  side,  met,  and  where  it  was  necessary  to 
have  a  bridge.  I  held  that  Congress  having 
passed  a  statute  authorizing  it  to  be  built,  and 
declaring  what  the  size  and  height  of  the  bridge 
and  the  width  between  its  piers  should  be,  the 
act  was  within  the  power  of  Congress  because 
it  was  a  regulation  of  commerce.  The  Supreme 
Court  sustained  me  in  that,  although  some  of 
the  judges  may  have  based  their  decision  upon 
the  fact  that  it  was   a  bridge  across  a  naviga- 


REGULATION    OF    COMMERCE.  449 

ble  stream,  and  therefore  within  the  control  of  lecture  ix. 
Cono;ress.     My  decision  in  that  case  has  of  ten  ^^ '"*^  If  ^°™' 

c5  «/  merce? 

been  quoted  in  Congress ;  various  committees 
having  charge  of  the  question  of  the  regulation 
of  railroad  traffic  have  considered  the  subject, 
and  although  no  bill  has  passed  both  Houses, 
yet  bills  substantially  based  upon  that  idea 
have  at  different  times  passed  each  House,  and 
generally  the  reports  of  the  committees  hav- 
ing them  in  charge  have  made  reference  to  that 
opinion. 

Having  ascertained,  then,  what  commerce  is,  what  it  is  to 
and  what  are  some  of  its  elements,  which  may  " '"''^"^^^^ '  '^^^' 

'  «^   merce. 

be  the  subject  of  the  action  of  Congress,  or  of 
the  attempted  action  of  the  States,  we  next  come 
to  consider  what  it  is  to  "regulate"  commerce. 
You  will  observe  from  the  extracts  quoted  from 
the  Federalist,  and  still  more  if  you  study  the 
history  of  the  formation  of  the  Constitution,  that 
the  word  "  regulate  "  was  one  much  more  fre- 
quently used  in  those  days  than  it  is  now ;  un- 
doubtedly our  forefathers  used  it  in  a  larger  and 
wider  sense  than  it  would  be  generally  used  at 
this  time.  But  we  have  in  Gibbons  v.  Ogden,  that 
magazine  of  constitutional  law  upon  this  subject, 
a  definition  by  Chief  Justice  Marshall  of  what  it 
is  to  regulate  commerce,  which  perhaps  can  never 
be  excelled  in  its  brevity,  accuracy,  and  compre- 
hensiveness. He  says  that  "  to  regulate  com- 
merce is  to  prescribe  the  rule  by  which  commerce 
is  to  be  governed."  Commerce  being  intercourse 
and  traffic  between  people,  to  regulate  it  is  to 
prescribe  rules  by  which  it  shall  be  conducted. 


450 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  IX. 
What  it  is  to 
"  regulate  "  com- 
merce. 


It  is  said  in  Cooley  v.  Port  Wardens  of  Phila- 
delphia, 12  How.  299,  that  it  is  the  power  to 
regulate  the  instruments  of  commerce  ;  that  "  it 
extends  to  the  persons  who  conduct  navigation 
as  well  as  to  the  instruments  used."  In  pur- 
suance of  that  view  the  Congress  of  the  United 
States  has  applied  the  power  which  it  has  under 
that  clause  to  regulate  commerce  to  a  method  of 
intercourse  which  had  no  existence  when  the 
Constitution  was  framed.  By  this  I  mean 
the  internal  commerce  of  the  country,  among 
the  States  and  on  its  great  rivers,  by  means  of 
steamboats,  for  it  was  nearly  forty  years  after 
tl^e  Constitution  was  adopted  before  a  steamboat 
was  successfully  used  to  take  part  in  the  actual 
transportation  of  goods  and  the  navigation  of  the 
waters  of  the  country.  Before  that  time,  how- 
ever, Congress  had  applied  its  powers  to  the 
regulation  of  sailing  vessels,  both  foreign  and 
domestic.  The  next  year  after  the  adoption  of 
the  Constitution  it  passed  two  statutes,  one  called 
the  "  registry  law,"  which  applied  exclusively  to 
vessels  engaged  in  foreign  trade,  and  the  other 
called  the  "  enrolment  law,"  which  had  applica- 
tion alone  to  coasting  and  other  vessels  engaged 
in  the  domestic  trade.  Congress  also  passed 
statutes :  indeed,  it  was  a  part  of  those  statutes, 
that  all  those  vessels  should  be  licensed,  and  that 
they  should  take  out  their  licenses  from  the 
officers  of  the  custom  houses  where  they  were 
built,  or  where  their  owners  resided.  In  fact, 
it  may  be  briefly  stated  that  the  whole  system 
of  the  navigation  laws  of  the  United  States  is 


REGULATION    OF    COMMERCE.  451 

founded  on  that  simple  clause  giving  Congress  lecture  ix. 
the  power  to  reo-ulate  commerce.  ^!^*^'^*  !^'^V' 

1  O  "  regulate     coin- 

Since  steamboats  came  into  successful  opera-  mcrce. 

. .         /-^  11  1  1  r-i    1  1  Steam  navij'ation 

tion  Congress  has  been  busy,  and  profitably  so,  ^j  t,,g  ^^^^^  ^nd 
in  passing  laws  concerning  and  regulating  their  interior  rivers. 
use  on  the  interior  waters  of  the  country.     It 
has  passed  laws  prescribing  the  number  of  passen 
gers  that  each  one  of  these  boats  may  carry  ir 
proportion  to  the  space  which  they  have  for  their 
accommodation,  and  providing  heavy  penalties 
for  any  excess  in  the  number  of  passengers  car- 
ried beyond  the  limit  permitted  by  law.     It  has 
also  enacted  statutes  requiring  them  to  keep  on 
board  certain  life-preserving  and  life-saving  im- 
plements, of  which  there  is  a  great  variet}",  some 
circular,  some  square,  some  of  cork,   and   some 
filled  with  air.     These  are  all  arrangements  pre- 
scribed by  Congress  under  this  same  clause  of 
the  Constitution. 

These  statutes  also  require  that  these  vessels 
shall  be  inspected.  The  smallest  vessel  that 
navigates  a  river  by  steam  as  well  as  the  largest 
that  navigates  the  ocean  is  required,  whether 
belonging  to  the  United  States  service  or  to  an 
individual,  to  be  inspected  and  to  have  put  up 
and  exhibited  in  their  cabins  a  certificate  of  that 
inspection,  which  must  be  renewed  at  appro- 
priate intervals.  These  provisions  are  all  in- 
tended for  the  safety  of  the  passengers  and 
crews,  and  to  provide  against  danger  to  human 
life.  It  is  also  provided  that  on  the  inland 
waters  of  the  country  the  pilot  and  engineer 
must   be  examined    by    suitable    commissioners 


452 


LECTUIIES    ON    CONSTITUTIONAL    LAW. 


Lecture  IX.       located  in  the  principal  cities  of  the  Union.    Any 
ortlTiakeTauIT"  stcamboat  owner  who  employs  a  pilot  or  engineer 
interior  rivers,      who  has  no  Hceiise  is  liable  to  a  penalty,  and  any 
man  who  undertakes  to  serve  as  a  pilot  or  engineer 
without  such  license  is  liable  to  a  similar  penalty. 
So  that  you  will  see  that  there  has  been  a  great 
deal  of  use  made  of  this  power  which  is  conferred 
by  this  clause  of  the  Constitution. 
Immigrants.  Another  matter  having   reference  mainly  to 

the  foreign  commerce  of  the  United  States  has 
been  the  subject  of  consideration  in  our  courts. 
I  allude  to  laws  concerning  the  landing  of  pas- 
sengers who  are  foreigners  in  our  ports.  For 
more  than  fifty  years  the  States  within  which 
the  principal  ports  of  entry  are  situated  have 
struggled  to  in  some  way  levy  a  tax  upon  every 
human  being  not  a  citizen  of  the  United  States 
who  landed  in  one  of  those  ports.  This  tax 
they  endeavored  to  collect  from  the  officers  of 
the  vessels  bringing  such  passengers,  under  the 
pressure  of  heavy  penalties  for  failure  to  pay 
such  impositions.  Such  laws  have  over  and 
over  again  been  declared  by  the  Supreme  Court 
to  be  unconstitutional  and  void,  because  they 
are  an  attempt  at  a  regulation  of  foreign  com- 
merce ;  because  the  terms  upon  which  subjects 
and  citizens  of  foreign  nations  shall  land  in  the 
United  States  are  not  fit  matters  for  State  legis- 
lation ;  because,  under  the  theory  upon  which 
our  Government  is  based,  the  central  authority 
must  deal  with  the  sovereigns  of  those  subjects, 
as  well  as  answer  to  them  for  any  wrong  done 
to  them  under  the  laws  of  nations ;  and  because 


REGULATION    OF    COMMERCE.  453 

such  laws  are  essentially  and  from  their  very  na-  lecturp:  ix. 
ture,  of  that  class  of  legislation  or  action  which  ^'"""«'""'**- 
is  international  in  its  character  and  which  must, 
therefore,  be  regulated  and  acted  upon  by  the 
Federal  Government  alone  so  far  as  foreign 
powers  are  concerned,  and  caimot  be  intrusted 
to  any  one  or  more  of  the  individual  States  of 
the  Union.  But  often  as  that  doctrine  has  been 
declared  by  the  Supreme  Court  of  the  United 
States,  beginning  with  the  Passenger  Cases,  7 
How.  283,  in  1849,  down  to  those  which  have 
been  recently  delivered,  still  the  States  continue 
this  effort  to  tax  passengers  and  freight  and 
seek  to  avoid  in  some  way  or  another  the  force 
and  effect  of  the  constitutional  provision  con- 
cerning commerce  and  its  regulation. 

There  is  one  other  question  connected  with  Co-ordinate 
this  topic  which  has  been  much  mooted  in  the  gt^gg^  ^ 
Supreme  Court,  and  that  is,  whether  there  may 
not  exist  in  the  States  a  co-ordinate  power  to 
regulate  commerce  of  certain  kinds  in  the  ab- 
sence of  any  action  by  Congress  on  the  subject. 
It  has  been  a  vexed  question  in  the  court 
whether  there  is  any  such  limited  field  of  State 
legislation,  or  for  State  legislative  power,  in 
regard  to  any  subject  which  can  be  fairly  called 
a  regulation  of  commerce.  But  I  think  that  it 
is  now  the  established  doctrine  that  there  is  a 
class  of  subjects  having  the  elements  of  com- 
merce, both  foreign  and  domestic  and  interstate, 
which  may  be  acted  on  and  in  regard  to  which 
rules  may  be  prescribed  by  the  States  so  long  as 
Congress  does  not  choose  to  occupy  the  field  and 


454 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  IX. 
Co-ordinate 
powers  ot  iLe 
States. 


pass  laws  upon  the  same  subject.  The  principal 
cases  upon  that  subject  are  rather  numerous, 
but  I  will  give  you  some  of  them.  Gibbons  v. 
Ogden,  9  Wheat.  1,  189;  WiUson  v.  Blackbird 
Creek  Co.,  2  Pet.  245 ;  Coolejj  v.  The  Board  of 
Wardens  of  the  Port  of  Phdadelphia,  12  How. 
299 ;  Gihyian  v.  The  City  of  Philadelphia,  3 
Wall.  713;  Crandall  v.  Nevada,  6  Wall.  35; 
Pound  V.  Turck,  95  U.  S.  459,  462;  Packet  Co.  v. 
Catlettsburg,  105  U.  S.  559. 

These  are  cases  involving  some  local  matter, 
yet  in  its  nature  a  regulation  of  commerce,  in 
regard  to  which  the  States  concerned  have  at- 
tempted to  pass,  and  have  passed  laws  whose 
validity  was  disputed  under  this  clause  of  the 
Constitution.  They  have  come  in  this  way 
before  the  Supreme  Court  of  the  United  States, 
where  they  have  been  held  to  be  valid.  I  can  do 
no  more  now  than  to  state  what  I  have  deduced 
as  the  result  of  these  cases.  The  doctrine  was 
for  the  first  time  clearly  stated  in  Cooley  v.  Tlie 
Board  of  Wardens,  and  it  has  been  repeatedly 
affirmed  since  in  the  same  court.  It  may  l)e  thus 
stated :  That  the  power  to  regulate  commerce  is 
one  which  includes  many  subjects  various  and 
quite  unlike  in  their  nature ;  that  whenever  sub- 
jects of  this  power  are  in  their  nature  national, 
or  require  one  uniform  system  or  plan  of  regula- 
tion, they  may  be  justly  held  to  belong  to  that 
class  over  which  Congress  has  the  exclusive 
power  of  legislation ;  but  that  local  and  limited 
matters,  not  national  in  their  character,  which 
are  most  likely  to  be  wisely  provided  for  by  such 


REGULATION    OF    COMMERCE.  455 

diverse  rules  as  the  localities  and  the  authorities  lecture  ix. 
of   the    different    States  may  deem    applicable /'"'""'"'^'"ff, 

•^  •!■  i  powers  of  the 

may  be  regulated  by  the  legislatures  of  those  states. 
States  in  the  absence  of  any  act  of  Congress 
upon  the  same  subject.  Of  course  when  Con- 
gress does  legislate,  as  it  has  a  right  to  do,  that 
excludes  the  legislation  of  the  States  and  ren- 
ders it  void  so  far  as  it  may  interfere  or  conflict 
with  the  statutes  of  the  United  States, 

It  may  be  useful  to  suggest  here  one  or  two 
of  the  classes  into  which  this  subject  may  be 
divided.  One  is  pilotage,  which  was  under  con- 
sideration in  Cooley  v.  The  Boaixl  of  Wardens. 
Almost  all  the  seaports  of  the  United  States 
have  found  it  necessary  to  make  rules  and  laws 
constituting  and  regulating  a  system  of  pilotage,  pilotage. 
By  these  provision  has  been  made  for  putting 
upon  the  great  ocean  steamships  and  other  ves- 
sels before  they  reach  the  bar,  which  exists  in 
most  of  our  harbors,  a  pilot  who  is  familiar  wdth 
the  coast  and  the  channel,  so  that  they  may  be 
brought  safely  into  port.  This  dispenses,  of 
course,  with  any  pilot  the  vessel  may  have  on 
board,  whether  competent  or  not.  The  reason 
for  this  is  that  it  has  been  found  necessary,  in 
order  to  make  proper  compensation  to  these 
pilots  and  support  a  sufficient  number  of  them 
to  do  the  business,  to  require  by  law  that  every 
vessel  shall  take  a  pilot ;  and  they  have  gone 
further,  no  doubt  under  a  necessity  inherent  in 
the  system,  and  have  required  that  the  vessel 
entering  a  port  shall  take  the  first  pilot  who 
offers  himself  when  it  comes  within  the  limits 


456 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  IX. 
Pilotage. 


Wharfage. 


where  the  pilot-laws  operate.  This  is  because 
these  pilots  must  go  out  and  cruise  about 
before  the  harbor,  and  stay  there  regardless 
of  the  weather,  so  that  all  vessels  may  avail 
themselves  of  their  services,  and  it  is  therefore 
provided  that  they  must  be  taken  in  the  order 
in  which  they  present  themselves.  Most  of  the 
States,  however,  have  a  provision  in  their  laws 
that  if  a  vessel  has  a  pilot  of  her  own,  or  for 
any  other  reason  chooses  to  dispense  with  the 
services  of  the  first  pilot  who  offers  himself, 
such  vessel  shall  pay  to  that  pilot  one-half  of 
the  usual  fees,  which  are  established  by  the 
local  regulations  of  the  different  States,  or  by 
their  legislative  bodies.  This  is  a  system  that 
requires  different  rules  and  provisions  in  New 
York  from  what  has  been  found  necessary  in 
New  Orleans,  and  it  has  therefore  been  held 
that  the  laws  of  the  States  upon  that  subject  are 
valid.  It  has  been  contended  that  all  compul- 
sory pilotage  should  be  abolished,  and  a  bill  to 
accomplish  that  object  has  been  reported  from 
the  Committee  on  Commerce  of  the  Senate  of 
the  United  States.  If  such  a  bill  should  pass  it 
would  not  be  necessary  for  a  vessel  to  take  a 
pilot  whether  she  wanted  him  or  not.  This  is 
an  apt  illustration  of  the  power  of  Congress  to 
act  upon  a  subject  which,  if  left  untouched  by 
it,  would  fall  within  the  power  of  the  State 
legislatures. 

Another  is  wharfage  rules  and  rates.  So  dif- 
ferent are  the  localities  where  vessels  land,  the 
nature  of  the  ground,  and  the  condition  of  the 


REGULATION    OF    COMMERCE.  457 

wharves,  that  it  generally  has  been  conceded  lfxture  ix. 
that  the  places  and  times  at  which  such  landings  ^"^^^^^^s^- 
may  be  made  and  the  rates  of  wharfage  shall 
be  left  to  local  regulation.  Yet,  undoubtedly, 
they  are  so  far  regulations  of  commerce,  that  if 
Congress  should  at  any  time  interfere  and  pass 
a  law  upon  the  subject  it  would  be  controlling. 

Another  class,  which  has  been  frequently  be- Bridges  over  navi- 
fore  the  Supreme  Court,  involves  matters  Hke  s^^'^^^"-^^"^^- 
that  discussed  in  the  case  of  the  Clinton  Bridge, 
that  is,  of  bridges  over  navigable  streams.  Such 
streams  are  within  the  control  of  Congress,  abso- 
lutely. We  may  say  in  regard  to  every  stream 
in  the  United  States  capable  of  being  used  as  an 
aid  to  commerce  for  the  navigation  of  any  craft 
whatever,  that  Congress  has  a  right  to  regulate 
its  use.  But,  in  the  building  of  railroads  across 
the  country  it  was  necessary  that  they  should 
cross  many  streams,  some  of  them  navigable, 
and  it  was  found  to  be  to  the  interest  of  com- 
merce that  they  should  be  bridged.  This  was 
sometimes  done  with  drawbridges,  but  their 
piers  were  somewhat  in  the  way,  and  rafts  and 
steamboats  often  struck  against  them.  So, 
some  of  the  States  authorized  the  building  of 
bridges,  and  the  courts  of  the  United  States 
have  held  that  if  there  be  no  unreasonable  use 
of  the  power  of  crossing  the  stream,  the  States 
may  authorize  the  building  of  bridges  in  the 
absence  of  any  action  by  Congress.  There  are 
now  bridges  over  the  Ohio,  the  Mississippi,  in- 
deed over  all  the  streams  crossed  by  railroads 
in  this  country,  of  which  perhaps  one-half  are 


458  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  IX.       authorized  by  some  act  of  Congress,  most  of  the 
Bridges  over  navi-^^^j^g^g   bv  the   States,  and    some  by  both.     In 

gable  streams.  "^  '  ^  ^ 

some  cases  there  was  a  State  law  allowing  the 
bridge  to  be  built  which  Congress  ratified.  It 
has  been  sometimes  said  in  regard  to  this  sub- 
ject that  the  power  of  Congress  is  in  abeyance 
and  can  be  exercised  by  the  States  in  the  absence 
of  Congressional  action. 

The  language  of  the  clause  of  the  Constitution 
which  we  are  considering,  declaring  that  Con- 
gress shall  have  power  "  to  regulate  commerce 
with  foreign  nations,  among  the  several  States, 
and  with  the  Indian  tribes,"  thus  points  out 
three  different  classes  of  commerce  placed  within 
the  control  of  that  body.  It  hag  pretty  fairly 
performed  its  duty  so  far  as  passing  laws  regu- 
lating commerce  with  foreign  nations  and  the 
Indian  tribes  is  concerned ;  but  until  recently 
almost  entirely  ignored  its  duty  in  regard  to 
its  reo-ulation  amono-  the  several  States  of  the 
Union.  The  result  of  this  failure  of  Congress 
to  prescribe  rules  for  the  government  of  com- 
state  laws  in  con- merce,  whicli  is  the  power  of  regulation,  has 
flict  with  this  pro- i^gg^  that  the  States,  under  pretence  of  exercis- 

Yision.  ^  ^  ^ 

ing  the  power  to  pass  laws  concerning  this  sub- 
ject, where  Congress  had  not  acted  upon  it, 
have  been  themselves  making  perpetual  efforts 
to  exercise  forbidden  powers  at  the  expense  of 
other  States.  The  power  to  regulate  commerce 
of  course  carries  with  it  the  auxiliary  powers 
of  the  courts  of  the  United  States  to  enforce 
the  laws  which  Congress  may  enact  thereunder, 
and  also  the  power  of   the  Supreme   Court   to 


REGULATION    OF    COMMERCE.  459 

declare  null  and  void  regulations  and  statutes  in  lecture  ix. 
contravention  of  those  laws  or  of  the  Constitu-  ^l'"*'^  '.'"^r^'"  *^""' 

tiic-t  with  this  pro- 

tion,  in  order  that  all  citizens  may  he  protected  vision. 
from  unconstitutional  laws  or  regulations  upon 
this  subject  sought  to  be  enforced  by  the  States. 
So  the  Federal  courts,  and  particularly  the 
Supreme  Court  of  the  United  States,  have  been 
the  theatre  of  a  contest  between  certain  States 
of  the  Union  and  citizens  of  other  States  who 
have  thought  themselves  injured  by  State  laws 
affecting  commerce.  That  the  courts  established 
under  the  Constitution  of  the  United  States  nec- 
essarily have  a  power  of  a  judicial  character, 
coextensive  with  the  enforcement  of  the  laws 
which  Congress  has  a  right  to  make  and  with 
the  needful  protection  of  the  citizens  of  the 
Federal  Union  against  laws  made  under  a  usur- 
pation of  power  by  the  States,  in  the  absence  of 
any  action  by  Congress  on  the  subject,  would 
hardly  seem  to  need  any  argument.  I  will, 
however,  refer  to  the  expression  used  in  that 
remarkable  case  of  Gibbons  v.  Ogdeu,  where  it 
is  said  that  "  wherever  commerce  among  the 
States  goes  the  judicial  power  of  the  United 
States  goes  to  protect  it  from  invasion  by  State 
legislatures."     9  Wheat.  191. 

There  are  many  cases  reported  in  the  deci- 
sions of  the  Supreme  Court  discussing  the 
attempted  exercise  of  power  by  the  State  legis- 
latures over  this  subject,  principally  devoted  to 
commerce  among  the  States.  As  an  evidence 
of  the  persistence  of  some  of  the  States  in  this 
attempt  to  transcend  their  powers,  I  quote  the 


460  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkctukk  IX       headnotes  of  the  opinion    m  People  v.   Compa- 
stHie  laws ...  con-       ^  Q^nevole  Traiisatlcmtinue,  107  U.  S.  59,  deliv- 

flict  with  this  pro-  -^  7  p  . 

vision.  ered  in  1882,  on  the  subject  or  the  landing  of 

passengers  at  one  of  the  larger  ports  of  the 
United  States.  The  syllabus  contains  a  suffi- 
cient synopsis  of  the  opinion  to  indicate  the  per- 
sistent effort  made  by  some  States  to  pass  laws 
which  they  are  forbidden  to  pass,  for  the  pur- 
pose of  raising  taxes  from  people  over  whom 
they  never  had  any  right  of  taxation. 

"  1.  The  statute  of  New  York  of  May  31, 
1881,  imposing  a  tax  on  every  alien  passenger 
who  shall  come  by  vessel  from  a  foreign  country 
to  the  port  of  New  York,  and  holding  the  vessel 
liable  for  the  tax,  is  a  regulation  of  foreign  com- 
merce, and  void.  Henderson  v.  Mayoi'  of  New 
York,  92  U.  S.  259,  and  Chy  Lung  v.  Freeman, 
92  U.  S.  275,  cited,  and  the  rulings  therein 
made  reaffirmed. 

"  2.  The  statute  is  not  relieved  from  this  con- 
stitutional objection  by  declaring  in  its  title  that 
it  is  to  raise  money  for  the  execution  of  the 
inspection  laws  of  the  State,  which  authorize 
passengers  to  be  inspected  in  order  to  determine 
who  are  criminals,  paupers,  lunatics,  orphans,  or 
infirm  persons,  without  means  or  capacity  to 
support  themselves,  and  subject  to  become  a 
public  charge,  as  such  facts  are  not  to  be  ascer- 
tained by  inspection  alone. 

"  3.  The  words  '  inspection  laws,'  '  imports  ' 
and  '  exports,'  as  used  in  cl.  2,  sec.  10,  Art.  I, 
of  the  Constitution  have  exclusive  reference  to 
property. 


REGULATION    OF    COMMERCE.  461 

"4.    This  is  apparent  from  the  language  of  cl.  lecture  ix. 

-,  rv         p    1 1  J  •    1  1  •  1  State  liiws  in  con- 

1,  sec.  9,  01  the  same  article,  where,  m  regard  ^j^^  ^i^j,  ^i^i^.  p^,^ 
to  the  admission  of  persons  of  the  African  race,  vision, 
the  word  'migration'  is  applied  to  free  persons, 
and  'importation'  to  slaves." 

The  point  here  made  is  that  the  Constitution 
declares  that  "  no  State  shall,  without  the  con- 
sent of  Congress,  lay  any  imposts  or  duties  on 
imports  or  exports,  except  what  may  be  abso- 
lutely necessary  for  executing  its  inspection 
laws."  After  the  Supreme  Court  of  the  United 
States  decided  in  the  Passenger  Cases,  in  1849, 
that  passengers  were  not  imports,  and  could  not, 
therefore,  be  taxed  in  that  way,  and  after  the 
decision  in  Henderson  v.  Mayor  of  New  York, 
92  U.  S.  259,  in  1875,  that  an  amended  law 
intended  to  get  rid  of  that  decision  was  uncon- 
stitutional, the  legislature  passed  the  law  of 
1881,  and  by  calling  it  an  inspection  law  under- 
took to  get  rid  of  the  prohibition  against  the 
regulation  of  commerce  by  a  State.  This  effort 
was  declared  by  that  opinion  to  be  an  unsuccess- 
ful one. 

There  are  many  cases,  however,  reported  in 
the  decisions  of  the  Supreme  Court  which  up- 
hold the  powers  exercised  by  the  State  legisla- 
tures as  coming  within  the  rule  in  Cooley  v.  Tlie 
Board  of  Wardens,  above  referred  to.  Among 
those  where  the  State  laws  have  been  supported 
are  the  cases  of  Willson  v.  The  Blackhird  Creek 
Marsh  Co.,  2  Pet.  245 ;  Gilman  v.  PhiladeljMa, 
3  Wall.  713,  and  others  above  cited. 

Willson  V.   The  Blackhird   Creek  Marsh   Co. 


402  LECTUKES    ON    CONSTITUTIONAL    LAW. 


Lecture  IX.       WRS  a  case  wliere  a  small  stream  emptying  into 
stateiawsincon-j)  I  j3         ^^^^-     v|g  for  ten  or  fifteen 

flict  with  this  pro-  <J  '  o 

vision.  miles  into  the  interior  of  the  country,  had  been 

dammed  with  a  view  to  improving  its  utility 
and  draining  the  water  from  the  surrounding 
swamps.  The  authority  under  which  this  was 
done  was  held  not  to  be  an  act  regulating  com- 
merce which  was  forbidden  by  the  Constitution, 
being  of  a  mere  local  and  limited  character, 
until  Congress  should  pass  some  law  on  the  sub- 
ject. That  was  the  first  case  in  which  the  doc- 
trine was  clearly  stated. 

In  Gihncm  v.  Philadelijliia  a  bridge  was  built 
across  the  Schuylkill  River  in  the  city  of  Phila- 
delphia, within  its  present  limits,  below  a  wharf 
which  had  been  long  used  and  to  which  vessels 
of  a  very  large  class  had  been  accustomed  to 
go.  It  was  decided  that  the  necessities  of  a 
bridge  at  that  point  for  the  use  of  the  great 
travel  of  the  city  were  so  great  that  its  author- 
ization by  the  legislature  of  Pennsylvania,  being 
of  a  strictly  local  character  and  not  interfering 
with  general  commerce,  came  within  the  rule  in 
CooJey  V.  The  Board  of  Wardens,  and  was,  until 
Congress  forbade  it,  a  legitimate  exercise  of 
power. 

In  other  cases,  rather  more  numerous,  various 
acts  of  the  State  lesjislatures  have  been  held 
void  as  infringing  upon  the  power  to  regulate 
commerce  exclusively  belonging  to  Congress. 
Gibbons  v.  Ocjden,  9  Wheat.  1,  186  ;  Brown  v. 
Maryland,  12  Wheat.  419  ;  Crandall  v.  Nevada, 
6  Wall.  35 ;   Case  of  the  State  Freight  Tax,  15 


REGULATION    OF    COMMERCE.  463 

Wall.  232;    Woodruff  Y.  Parham,  8  Wall.  123  ;  lecture  ix. 
Welton   V.    State   of  Missouri,   91    U.    S.   21b ',^:!'';'^;^ '!'}'''''- 

•J  '  '  nict  with  tbis  pro- 

Westem  Union  Telegraph  Co.  v.  Texas,  105  U.  S.  visiou. 
460 ;  Railroad  Co.  v.  Husen,  95  U.  S.  465. 

Perhaps  a  clearer  idea  may  be  had  of  the 
princiiyles  upon  which  these  State  laws  have 
been  held  to  be  infringements  of  the  power 
vested  in  Congress  by  the  Constitution  by  stat- 
ing briefly  the  substance  of  one  or  two  of  tlie 
most  remarkable  of  these  cases. 

In    Crandall  v.  Nevada,   6   Wall.   35,  it  ap- Review  of  prin- 
peared  that  the  State  of  Nevada  had  enacted  ^^^^^ ^ff,^- 

-"■  CranduU  v. 

a  statute  that  every  person  who  passed  through  Nevada. 
its  territory  by  any  of  the  ordinary  modes  of 
public  convej'ance  should  pay  to  the  State  one 
dollar  for  that  privilege.  That  is  the  way  the 
Supreme  Court  construed  the  act.  But  the 
statute  was  artfully  drawn,  as  all  such  statutes 
are,  and  it  provided  that  every  railroad,  stage, 
or  other  company  engaged  in  the  business  of 
transportation,  should  pay  to  the  State  one  dol- 
lar for  every  person  that  they  carried  through 
the  State.  It  has,  however,  long  been  decided, 
and  it  is  very  obvious,  that  such  a  tax  levied  on 
a  carrier  is  really  a  tax  on  the  passenger,  for 
the  carrier  of  course  makes  him  pay  that  much 
more  for  carrying  him  through  the  State  or  for 
his  conveyance  whether  it  is  by  land  or  water. 
As  remarked  by  the  Supreme  Court  in  Hender-  Henderson  v. 
son  V.  The  Mayor  of  New  York,  92  U.  S.  259,  ^^'''  ^''^^ 
in  the  Passenger  Cases,  and  some  'others,  a  tax 
demanded  of  a  vessel  for  landing  a  passenger, 
coming  from  a  European  shore,  in  the  harbor 


464 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  IX. 
Keview  of  prin- 
cipal cases. 
Henderson  v. 
Ne}i)  York. 


Welton  V.  Mis- 
souri. 


of  New  York,  is  in  its  effect  clearly  a  tax  upon 
the  passenger,  because  the  master  of  the  vessel 
puts  that  tax  into  his  charge  before  he  takes  the 
passenger  on  his  vessel  at  the  European  port, 
wherever  it  may  be.  So  in  this  case,  it  was 
miquestionably  a  tax  upon  the  passenger  for  the 
simple  privilege  of  going  through  the  State. 
The  Supreme  Court  of  the  United  States  held 
that  to  be  void,  and  the  act  was  thereafter  never 
enforced. 

That  decision,  which  probably  would  not  have 
affected  but  a  few  thousand  dollars  a  year  so 
far  as  the  State  of  Nevada  was  concerned,  had 
the  effect  to  break  up  a  system  of  taxing  pas- 
sengers by  railroads  that  run  into  the  city  of 
Washington.  The  State  of  Maryland  had  for 
twenty  years  exacted  from  the  Metropolitan 
Branch  of  the  Baltimore  and  Ohio  Railroad 
Company  a  tax  of  half  a  dollar  for  every  pas- 
senger carried  over  that  road,  but  the  practice 
was  stopped  by  that  decision.  The  State  of 
New  Jersey  had  taxed  all  the  passengers  which 
passed  through  its  strip  of  territory  extending 
as  a  barrier  between  the  city  of  New  York  and 
the  West  and  South,  and  that  custom  was  also 
broken  up  by  that  decision. 

InWelton  v.  The  State  of  Missouri,  91 U.  S.  275, 
it  was  shown  that  that  State  had  by  legislative 
enactment  authorized  the  city  of  Saint  Louis, 
among  other  things,  to  tax  peddlers.  In  the 
exercise  of  that  power,  however,  the  city  taxed 
only  those  peddlers  who  came  within  its  borders 
to  sell  goods  from  other  States,  and  did  not  tax 


REGULATION    OF    COMMERCE.  465 

those  who  in  that  city  sold  only  the  goods  or  lecture  ix. 
produce   of  the    State   of   Missouri.     This   was  ^''^T^  "^  p-"'"" 

^  CI  pal  cases. 

very  clearly  a  regulation  of  commerce  prejudi-  Weitonv.Mis- 
cial  to  other  States  and  favorable  to  the  mer-  *'""^** 
chants  of  Saint  Louis,  designed  to  compel  every 
man  wlio  came  within  its  limits  to  sell  the  prod- 
uce of  any  other  State  to  pay  a  tax  regulated 
by  its  discretion,  because  if  it  could  levy  a  tax 
of  one  dollar  it  might  increase  it  to  one  hun- 
dred dollars.  The  Supreme  Court  held  that  to 
be  a  regulation  of  commerce  among  the  States. 
If  a  peddler  came  there  from  New  York,  Cin- 
cinnati, or  Chicago,  to  sell  goods  that  he  had 
bought  in  those  cities,  and  was  compelled  by  the 
State  of  Missouri  to  pay  a  tax  for  the  privilege, 
when  the  man  living  in  that  State  was  not  taxed 
for  selling  the  produce  or  goods  of  that  State, 
it  was  manifestly  a  regulation  of  commerce  un- 
favorable to  other  States  of  the  Federal  Union. 
It  was,  therefore,  held  to  be  void. 

The  question  of  the  taxation  of  non-resident 
peddlers  has  arisen  in  the  District  of  Columbia, 
but  since  the  acts  of  Congress  govern  here,  the 
District  not  being  a  State,  and  the  authority 
under  which  a  peddler  can  be  taxed  in  this  city 
must  originate  in  Congress,  which  has  a  right  to 
regulate  its  commerce,  it  is  not  clear  how  the 
courts  can  do  much  in  regard  to  the  grievance. 

Another  case  illustrating  the  point  in  question  KaUroad  Co.  v. 
is  that  of  Railroad  Co.  v.  Husen,  95  U.  S.  465.  '^"^''^"• 
There  was  a  statute   passed   by  the    State   of 
Missouri  with   regard  to  a  disease  which  was 
supposed  to  infest  Texan  cattle  coming  into  and 


4G6 


LECTUKES    ON    CONSTITUTIONAL    LAW. 


Lecture  IX. 
Review  of  prin- 
cipal cases. 
Kuilroad  Co.  v. 
Htisen. 


W.  U.  Tel.  Co. 
V.  Tevas. 


going  through  Missouri,  and  which  was  regarded 
as  infectious.  I  am  not  prepared  to  say  that  if 
the  statute  had  been  strictly  limited  to  the  ex- 
clusion of  cattle  having  that  disease,  or  if  it  had 
provided  proper  means  for  ascertaining  what 
cattle  were  diseased,  and  when  that  was  ascer- 
tained had  directed  them  to  be  turned  back  or 
segregated  so  that  the  disease  should  not  be 
further  propagated,  it  would  not  have  been  valid. 
But  Missouri,  like  other  States  attempting  to 
operate  on  this  class  of  subjects,  declared  that 
no  cattle  from  the  State  of  Texas  should  come 
into  that  State  at  all,  until  they  had  been  kept 
long  enough  to  prevent  any  danger  of  contagion. 
The  statute  in  effect  amounted  to  an  entire  pro- 
hibition on  the  railroads  from  carrying  cattle 
from  Texas  through  the  State  of  Missouri,  and 
the  Supreme  Court  of  the  United  States  held  it 
to  be  unconstitutional. 

Perhaps  the  case  of  the  Western  Union  Tele- 
graph Co.  V.  Texas,  105  U.  S.  460,  more  fully 
illustrates  what  is  and  what  is  not  permissible 
on  the  part  of  the  several  States,  than  any  other 
which  has  been  decided  by  the  Supreme  Court. 
That  State  attempted  to  levy  a  tax  of  one  cent 
upon  every  message  received  at  or  sent  from  any 
telegraph  ofhce  located  within  its  limits.  With- 
out going  into  the  circumstances  of  the  case  in 
detail,  it  may  be  simply  remarked  that  the  tele- 
graph company  contested  the  validity  of  the  act 
on  the  ground  that  it  was  unconstitutional,  being 
a  regulation  of  commerce.  The  question  came 
before  the  Supreme  Court  and  they  held  that  the 


REGULATION    OF    COMMERCE.  467 

very  terms  of  the  commerce  clause  of  the  Con-  lecture  ix. 
stitution  imply  that  there  is  a  commerce  with  ciTarcases^'"" 
which  Congress  has  no  right  to  interfere,  and  ^-  u.  rd.  co. 
which  the  States,  therefore,  have  the  right  to  ^" 
regulate.  It  will  be  observed  that  ''  commerce 
with  foreign  nations,"  and  "  among  the  several 
States,"  and  "with  the  Indian  tribes,"  leaves  a 
large  body  of  commerce,  which  has  been  defined 
as  trade,  traffic,  and  intercourse,  conducted  be- 
tween citizens  of  the  same  State,  entirely  beyond 
the  control  of  Congress.  It  has  always  been 
conceded  in  the  discussions  in  the  Supreme  Court 
that  with  this  great  body  of  commerce,  consist- 
ing of  trade  between  citizens  of  the  same  State, 
Congress  could  not  interfere,  and  that  the  Con- 
stitution did  not  affect  the  power  of  the  State 
to  regulate  and  control  it.  The  business  of  the 
company  was  the  forwarding  of  messages,  of 
which  undoubtedly  a  large  number  were  sent 
from  some  point  or  office  of  the  company  in  the 
State  of  Texas  to  some  other  point  or  office 
within  the  same  State.  Naturally,  also,  a  very 
large  number  of  these  messages  went  from  that 
State  into  others,  as  well  as  came  from  others 
into  the  State  of  Texas.  If  the  latter  was  com- 
merce at  all,  it  was  "  commerce  among  the  several 
States ;  "  for  another  definition  which  has  been 
given  of  the  matter  shows  that  the  nations, 
States,  and  tribes  designated  in  this  clause  of 
the  Constitution  do  not  mean  those  bodies  in  the 
aggregate.  For  example  :  the  State  of  Tennessee 
has  no  commerce  with  the  State  of  Kentucky 
lying  adjacent  to  it ;  the  United  States  as  a  body 


468 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  IX. 
Review  of  prin- 
cipal cases. 
W.  U.  Tel.  Co. 
V.  Texas. 


has  no  commerce  with  England.  It  simply  means 
commerce,  traffic,  and  intercourse  between  the 
citizens  or  subjects  of  those  nations,  States,  or 
tribes ;  so  that  when  a  man  in  Liverpool  sells 
an  article  to  a  man  in  New  York  that  is  com- 
merce with  a  foreign  state.  The  same  is  true 
as  to  citizens  of  different  States  of  the  Union,  or 
as  to  an  American  citizen  and  a  member  of  an 
Indian  tribe.  It  follows  from  these  observations 
that,  as  regards  the  tax  of  one  cent  levied  upon 
the  telegraph  company  for  every  message  re- 
ceived or  delivered  in  the  State  of  Texas,  some 
portion  of  it  might  be  valid,  because  levied  upon 
messages  transmitted  wholly  within  the  limits 
of  the  State,  belonging  to  what  may  be  called 
State  commerce  or  internal  commerce,  which  is 
not  affected  by  the  clause  under  consideration. 
On  the  other  hand,  a  large  portion  of  the  tax 
would  be  levied  upon  messages  coming  from  or 
going  into  other  States,  which  would  be,  if  com- 
merce at  all,  "  commerce  among  the  several 
States."  I  will  quote  the  language  of  the  Chief 
Justice  in  the  opinion  in  this  case,  confirmatory 
of  what  has  been  before  stated,  that  railroad  and 
steamboat  transportation  is  as  much  commerce 
as  that  which  takes  place  in  sailing  vessels,  the 
only  known  method  of  water  carriage  at  the 
time  the  Constitution  was  adopted. 

''  In  Pensacola  Telegrajoh  Co.  v.  Western  Union 
Telegraph  Co.,  96  U.  S.  1,  this  court  held  that 
the  telegraph  was  an  instrument  of  commerce 
and  that  telegraph  companies  were  subject  to 
the  regulating  power  of  Congress  in  respect  to 


liEGULATION    OF    COMMERCE.  469 

their  foreign  and  interstate  business.      A   tele-  lectttre  tx. 
OTaph   company  occupies   the   same  relation  i^q  ^^*^^'f ^^  *'^ ''"°" 

~       1  i-        J  I  cipal  cases. 

commerce,  as  a  carrier  of  messages,  tliat  a  rail- 
,  road  company  does  as  a  carrier  of  goods.  Both 
companies  are  instruments  of  commerce,  and 
their  business  is  commerce  itself."  Telegraph 
Co.  V.  Texas,  105  U.  S.  460,  464. 

The  opinion  then  goes  on  to  decide  that  so 
much  of  the  law  levying  that  tax  as  concerned 
messages  coming  into  the  State  of  Texas  or 
going  out  of  it  to  other  States  was  void,  and 
that  if  the  State  wanted  to  tax  messao:es  sent 
by  private  parties,  and  not  by  agents  of  the  Gov- 
ernment of  the  United  States,  from  one  place  to 
another  exclusively  within  its  own  jurisdiction, 
it  could  do  so,  but  that  it  could  not  under  the 
law  in  question  tax  messages  between  different 
States. 

Only  a  few  words  need  be  said  in  regard  to  com-  Commerce  with 
merce  with  the  Indian  tribes.  Of  course  they 
were  relatively  much  more  powerful,  and  they 
themselves  more  numerous,  at  the  time  the  Con- 
stitution was  adopted  than  now,  and  commerce 
and  personal  intercourse  with  them  was  a  matter 
of  much  more  importance.  They  are  still,  how- 
ever, a  great  expense  to  the  Government,  and 
occupy  even  at  this  day,  as  they  have  always 
done,  a  great  deal  of  public  attention,  an  impor- 
tant place  in  the  legislation  of  Congress  and  in 
the  action  of  the  departments.  Very  early  after 
the  formation  of  the  Constitution  Cong-ress  took 
up  the  subject  of  intercourse  with  the  Indian 
tribes  and  passed  laws,  supposed  to  be  judicious, 


470  LECTUEES    ON    CONSTITUTIONAL    LAW. 

Lecture  IX.       restraining   them,    forbidding   white   people   to 
Commerce  with      ^^|^   aniong  them,  and  made  a   special   effort 

the  Indian  tribes.  o  '    ^  ^  r 

to  prevent  the  use  of  intoxicating  liquors  and  to 
exclude  them  from  their  reservations.  Congress 
had  the  power  under  that  clause  of  the  Consti- 
tution to  prohibit  or  license  trade,  to  prohibit  or 
license  personal  intercourse,  and  it  passed  laws 
upon  that  subject.  This  power  of  Congress  to 
regulate  commerce  with  these  tribes,  as  the 
Supreme  Court  has  said  in  several  instances,  is 
one  which  may  be  exercised  with  regard  to  the 
tribes  in  their  localities,  in  the  territories  or 
within  organized  States,  and  also  with  regard  to 
a  member  of  a  tribe  who  abides  by  the  tribal 
relation.  It  has  no  restriction  to  locality,  but 
wherever  a  tribe  is  found,  however  large  or 
small,  wherever  there  is  an  Indian  who  belongs 
to  a  tribe,  this  power  of  Congress  attaches, 
whether  it  be  in  a  State  of  the  Union  or  upon 
the  plains  of  the  territories  of  the  West.  A 
short  extract  from  the  case  of  United  States  v. 
Holliday,  3  Wall.  407,  417,  will  perhaps  give 
you  a  clearer  view  of  the  relation  which  Con- 
gress sustains  to  the  Indian  tribes  than  any 
statement  which  I  might  make.  The  court  was 
considering  an  act  forbidding  the  sale  of  liquor 
to  Indians  in  charge  of  an  agent  appointed  by 
the  Government.  The  offence  complained  of  in 
that  case  took  place  within  the  organized  State 
of  Minnesota,  without  the  limits  of  the  reser- 
vation on  which  the  Indian  tribe  lived.  The 
objection  was  raised  that  the  power  of  Congress 
did  not  extend  there,  but  that  the  Indian  was 


REGULATION    OF    COMMERCE.  471 

within  the  territory  of  a  State  which  had  the  lecture  ix. 
right  to  regulate  its  sale.     The  court  said  :  —       ^"";™!>-*^«  f}^' 

^  ^  the  Indian  tribes. 

"  If  the  act  under  consideration  is  a  regulation 
of  commerce,  as  it  undoubtedly  is,  does  it  regu- 
late that  kind  of  commerce  which  is  placed 
within  the  control  of  Congress  by  the  Consti- 
tution. The  words  of  that  instrument  are : 
'  Congress  shall  have  power  to  regulate  com- 
merce with  foreign  nations,  and  among  the 
several  States,  and  with  the  Indian  tribes.' 
Commerce  with  foreign  nations,  without  doubt, 
means  commerce  between  citizens  of  the  United 
States  and  citizens  or  subjects  of  foreign  govern- 
ments, as  individuals.  And  so  commerce  with 
the  Indian  tribes  means  commerce  with  the 
individuals  composing  those  tribes.  The  act 
before  us  describes  this  precise  kind  of  traffic  or 
commerce,  and  therefore  comes  within  the  terms 
of  the  constitutional  provision.  Is  there  any- 
thing in  the  fact  that  this  power  is  to  be  exer- 
cised within  the  limits  of  a  State,  which  renders 
the  act  regulating  it  unconstitutional  ?  In  the 
same  opinion  to  which  we  have  just  before  re- 
ferred, \_Gibbons  v.  Ogden,'\  Judge  Marshall,  in 
speaking  of  the  power  to  regulate  commerce 
with  foreign  states,  says  :  '  The  power  does  not 
stop  at  the  jurisdictional  limits  of  the  several 
states.  It  would  be  a  very  useless  power  if  it 
could  not  pass  those  lines.'  '  If  Congress  has 
power  to  regulate  it,  that  power  must  be  exer- 
cised wherever  the  subject  exists.'  It  follows 
from  these  propositions,  which  seem  to  be  in- 
controvertible, that  if  commerce,  or  traffic,  or 


472  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  IX.       intercourse,  is  carried  on  with  an  Indian  tribe, 
conunerce  with    ^^,  ^^-^j^  ^  member  of  such  tribe,  it  is  subiect  to 

the  Iiidiaii  trihes.  ^  _      •' 

be  reguhited  by  Congress,  although  within  the 
limits  of  a  State.  The  locality  of  the  traffic  can 
have  nothing  to  do  with  the  power.  The  right 
to  exercise  it  in  reference  to  any  Indian  tribe, 
or  any  person  who  is  a  member  of  such  tribe,  is 
absolute,  without  reference  to  the  locality  of  the 
traffic,  or  i^e  locality  of  the  tribe,  or  of  the  mem- 
ber of  the  tribe  with  whom  it  is  carried  on.  It 
is  ,not,  however,  intended  by  these  remarks  to 
imply  that  this  clause  of  the  Constitution  au- 
thorizes Congress  to  regulate  any  other  com- 
merce, originated  and  ended  within  the  limits 
of  a  single  State,  than  commerce  with  the  Indian 
tribes." 

In  that  case  one  of  the  Indians  concerned  be- 
longed in  the  State  of  Michigan,  was  authorized 
to  vote  in  that  State  by  its  laws,  and  had  so 
voted  at  county  and  town  elections.  He  also 
owned  property  there,  and,  therefore,  it  was 
argued  that  he  could  not  be  the  subject  of  any 
regulation  of  commerce  with  the  Indian  tribes. 
The  answer  to  this  proposition  is,  in  the  lan- 
guage of  the  opinion,  that  "  neither  the  Consti- 
tution of  the  State,  nor  any  act  of  its  legislature, 
however  formal  or  solemn,  whatever  rights  it 
may  have  conferred  on  those  Indians  or  with- 
held from  them,  could  withdraw  them  from  the 
influence  of  an  act  of  Congress  which  that  body 
has  the  constitutional  right  to  pass  concerning 
them.  Any  other  doctrine  would  make  the 
legislation  of  the  State  the  supreme  law  of  the 


REGULATION    OF    COMMERCE.  4  /  3 

land  instead  of  the  Constitution  of  the  United  lecture  ix. 

States."  Commerce  with 

the  Indian  tribes. 

It  is,  however,  proper  to  say  that  it  was  ascer- 
tained that  this  Indian  still  so  far  retained  his 
tribal  relation  that  he  drew  his  sliare  of  the  an- 
nuities belonging  to  the  tribe,  and  that  he  was 
among  the  number  of  those  that  an  Indian  agent 
was  appointed  to  look  after  as  members  of  that 
tribe.  The  court  held  in  that  case,  following  a 
long  course  of  previous  decisions,  that  in  a  mat- ' 
ter  which  constituted  a  kind  of  political  relation 
between  the  Government  of  the  United  States 
and  some  other  nation  or  tribe,  the  court  would 
follow  the  action  of  what  may  be  termed  the 
political  branch  of  the  Government,  that  is,  the 
Executive,  the  Congress,  and  the  Departments. 


NOTES   UPON   LECTURE   IX. 


lectdre  IX.  It  is  apparent  that  this  lecture  was  written 

Cases  decided       some  vears  since.     It  contains  no  reference  to  a 

since  this  lecture      .  .,,.  irvHrTTo//^  m 

was  written.  Single  case  decided  smce  107  U.  b.  (October  Term, 
1882),  although  far  more  cases  involving  a  con- 
sideration of  this  clause  of  the  Constitution  have 
been  decided  since  then,  than  during  any  period 
of  the  same  number  of  years  since  the  court  was 
organized.  The  footnote  below  gives  a  list  of 
the  more  important  of  these  cases.^ 

1  Miller  v.  Neif>  York,  109  U.  S.  385 ;  Moran  v.  New  Orleans, 
112  U.  S.  69 ;  Foster  v.  Kansas,  112  U.  S.  201  ;  Head  Money  Cases, 
112  U.  S.  580;  Cardwell  y.  American  Bridge  Company,  11-3  U.  S. 
205;  Cooper  Manufacturing  Co.  v.  Ferguson,  113  U.  S.  727; 
Gloucester  Ferry  Company  v.  Pennsylvania,  114  U.  S.  196 ;  Brown 
V.  Houston,  114  U.  S.  622  ;  Fisk  v.  Jefferson  Police  Jiwy,  116  U.  S. 
131 ;  Stone  v.  Illinois  Central  Railroad,  116  U.  S.  347  ;  Stone  v. 
New  Orleans  &  Northeastern  Railroad,  116  U.  S.  352  ;  Walling 
V.  Michigan,  116  U.  S.  446  ;  Coe  v.  Errol,  116  U.  S.  517  ;  Pickard 
V.  Pxillman  Southern  Car  Co.,  117  U.  S.  34  ;  Tennessee  v.  Pullman 
Southern  Car  Co.,  117  U.  S.  51  ;  Spraigue  v.  Thompson,  118  U.  S. 
90  ;  Morgan'' s  Steamship  Co.  v.  Louisiana,  118  U.  S.  455  ;  Wabash 
&c.  Railicay  Co.  v.  Illinois,  118  U.  S.  557  ;  Bobbins  v.  Shelby 
County  Taxing  District,  120  U.  S.  489;  Corson  v.  Maryland,  120 
U.  S.  502 ;  Fargo  v.  Michigan,  121  U.  S.  230 ;  Philadelphia  & 
Southern  Steamship  Co.  v.  Pennsylvania,  122  U.  S.  326 ;  Western 
Union  Telegraph  Co.  v.  Pendleton,  122  U.  S.  347  ;  3Iugler  v.  Kan- 
sas, 123  U.  S.  623  ;  Smith  v.  Alabama,  124  U.  S.  465  ;  Willamette 
Iron  Bridge  Co.  v.  Hatch,  125  U.  S.  1  ;  Boicman  v.  Chicago  & 
Northicestern  Railway  Co.,  125  U.  S.  465  ;  California  v.  Central 
Pacific  Railroad  Co.,  127  U.  S.  1  ;  Ratterman  v.  We.itern  Union 
Telegraph  Co.,  127  U.  S.  411  ;  Leloup  v.  Port  of  Mobile,  127  U.  S. 

474 


NOTES    UPON    LECTURE    IX.  475 

A  selection  from  some  of   the  points  in  the  lecture  ix. 
headnotes  of  a  few  of  these  cases  will  show  their  ^ire'th^s'ittre 

importance.  was  written. 

1.    Generally. 

As  to  those  subjects  of  commerce  which  are  Generally, 
local  or  limited  in  their  nature  or  sphere  of 
operation,  the  State  may  prescribe  regulations 
until  Congress  assumes  control  of  them.  As 
to  those  national  in  character,  and  requiring 
uniformity  of  regulation,  the  power  of  Congress 
is  exclusive  ;  and  until  Congress  acts,  such  com- 
merce is  entitled  to  be  free  from  State  exactions.* 

The  clause  in  the  Constitution  wdiich  confers 
upon  Congress  the  power  to  regulate  commerce 
among  the  several  States  leaves  to  the  States, 
in  the  absence  of  congressional  legislation,  the 
power  to  regulate  matters  of  local  interest, 
which  affect  interstate  commerce  only  inciden- 
tally ;  but  the  power  of  Congress  over  interstate 
commerce  is  exclusive  wherever  the  matter  is 
national  in  character,  or  admits  of  a  uniform 
system  or  plan  of  regulation.  So  long  as  Con- 
gress passes  no  law  to  regulate  interstate  com- 
merce of  the  nature  and  character  which  makes 
its    jurisdiction   exclusive,    its    refraining   from 


640  ;  Kidd  v.  Pearson,  128  U.  S.  1  ;  Asher  v.  Texas,  128  U.  S.  129  ; 
Stotiteiih7trgh  v.  Henrick,  129  U.  S.  141  ;  Western  Union  Telegraph 
Co.  V.  Alabama,  132  U.  S.  472  ;  Lonisville,  New  Orleans  tf-c.  Rail- 
way  Co.  V.  Mississippi,  lo3  U.  S.  587  ;  Leisy  v.  Hardin,  135  U.  S. 
100;  McCall  \.  California,  136  U.  S.  104;  Norfolk  &  Western 
Railroad  Co.  v.  Pennstjlvania,  136  U.  S.  114;  Minnesota  v.  Barber, 
136  U.  S.  313  ;  Crowley  v.  Christensen,  137  U.  S.  86  ;  Brimmer  v. 
Rebman,  138  U.  S.  78. 

1  Gloucester  Ferry  Co.  v.  Pennsylvania,  114  V.  S.  190. 


476  LECTUKES    ON    CONSTITUTIONAL    LAW. 

Lecture  IX.       actioii  indicates  its  will  that  commerce  shall  be 
Generally.  ^^^^  .^^^  untrammelled.^ 

The  transportation  of  persons  and  property 
between  States  is  commerce  of  a  national  char- 
acter, requiring  uniformity  of  regulation.^ 

The  prohibition  of  the  Constitution  against 
State  laws  impairing  the  obligation  of  contracts 
applies  to  implied  contracts  as  well  as  to  express 
contracts.^   ' 

Interstate  commerce  by  corporations  is  enti- 
tled to  the  same  protection  against  State  exac- 
tions which  is  given  to  such  commerce  when 
carried  on  by  individuals.* 

A  State  act  which  imposes  limitations  upon 
the  power  of  a  corporation,  created  under  the 
laws  of  another  State,  to  make  contracts  within 
the  State  for  carrying  on  commerce  between  the 
States,  violates  that  clause  of  the  Constitution 
which  confers  upon  Congress  the  exclusive  right 
to  regulate  that  commerce.^ 

The  power  to  regulate  commerce,  interstate 
and  foreign,  vested  in  Congress,  is  the  power 
to  prescribe  the  rules  by  which  it  shall  be 
governed,  that  is,  the  conditions  on  which  it 
shall  be  conducted ;  to  determine  when  it  shall 
be  free,  and  when  subject  to  duties  or  other 
exactions.^ 

When  goods,  the   product  of  a  State,  have 

1  Brow7i  V.  Houston,  114  U.  S.  022. 

2  Gloucester  Ferry  Co.  v.  Pennsijlvania,  114  U.  S.  196. 

3  Fisk  V.  Jefferson  Police  Jury,  110  U.  S.  1.31. 

*  Gloucester  Ferry  Co.  v.  Pennsylvania.,  114  U.  S.  196. 
^  Cooper  Manufacturing  Co.  v.  Ferguson,  113  U.  S.  727. 
^  Gloucester  Ferry  Co.  v.  Pennsylvania,  114  U.  S.  196. 


NOTES    UPON    LECTURE    IX.  477 

begun  to  be  transported  from  that  State  to  lkcture  ix. 
another  State,  and  not  till  then,  they  become  ^'^"•^''^^'y- 
the  subjects  of  interstate  commerce,  and,  as 
such,  are  subject  to  national  regulation,  and 
cease  to  be  taxable  by  the  State  of  their  origin. 
Goods  on  their  way  through  a  State,  from  a 
place  outside  thereof  to  another  place  outside 
thereof,  are  in  course  of  interstate  or  forei";n 
transportation,  and  are  subjects  of  interstate  or 
foreign  commerce,  and  are  not  taxable  by  the 
State  through  which  they  are  passing,  even 
though  detained  within  that  State  by  low 
water,  or  other  temporary  causes.^ 

Interstate  commerce  cannot  be  taxed  at  all 
by  a  State,  even  though  the  same  amount  of  tax 
should  be  laid  on  domestic  commerce,  or  that 
which  is  carried  on  solely  within  the  State .^ 

The  question  whether,  when  Congress  fails  to 
provide  a  regulation  by  law  as  to  any  particular 
subject  of  commerce  among  the  States,  it  is  con- 
clusive of  its  intention  that  that  subject  shall 
be  free  from  positive  regulation,  or  that,  until 
Congress  intervenes,  it  shall  be  left  to  be  dealt 
with  by  the  States,  is  one  to  be  determined  from 
the  circumstances  of  each  case  as  it  arises.^ 

A  burden  imposed  upon  interstate  commerce 
is  not  to  be  sustained  simply  because  the  statute 
imposing  it  applies  alike  to  the  people  of  all  the 
States,  including  the  people  of  the  State  enact- 
ing it.* 

1  Coe  V.  Errol,  116  U.  S.  517. 

2  Robbins  v.  Shelbij  Counhj  Taxing  District,  120  U.  S.  489. 

^  Bowman  v.  Chicago  &  Northicestern  Eaihoay  Co.,  125  U.  S.  465. 
*  Minnesota  v.  Barber,  136  U.  S.  313. 


478 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  IX. 
Bridges. 


Steamships. 


2.    Bridges  over  Navigable  Streams. 

A  bridge  erected  over  the  East  River  in  New 
York,  in  accordance  with  authority  derived  from 
Congress  and  from  the  legislature  of  New  York, 
is  a  lawful  structure,  which  cannot  be  abated  as 
a  public  nuisance.^ 

In  the  absence  of  legislation  by  Congress,  a 
State  may  authorize  a  navigable  stream  within 
its  limits  to  be  obstructed  by  a  bridge  or  high- 
way ;  ^  but  Congress  has  plenary  powers  respect- 
ing such  streams  and  is  not  concluded,  by 
anything  that  may  have  been  done  under  State 
authority,  from  assuming  entire  control,  abat- 
ing any  erections  that  may  have  been  made,  and 
preventing  any  other  from  being  made  except 
in  conformity  with  such  regulations  as  it  may 
impose.^ 

3.    Steamships. 

A  tax  upon  the  gross  receipts  of  a  steamship 
company  incorporated  under  its  laws,  which  are 
derived  from  the  transportation  of  persons  and 
property  by  sea,  between  different  States  and  to 
and  from  foreign  countries,  is  a  regulation  of 
interstate  and  foreign  commerce,  in  conflict  with 
the  exclusive  power  of  Congress  under  the  Con- 
stitution.^ 


1  Miller  V.  New  York,  109  U.  S.  385. 

2  Carclivell  v.  American  Bridge  Company,  113  U.  S.  205. 

3  Willamette  Iron  Bridge  Co.  v.  Hatch,  125  U.  S.  1. 

*  Philadelphia  &  Southern  Steamship  Co.  v.  Pennsylvania,  122 
U.  S.  326. 


NOTES   UPON   LECTURE   IX.  470 

4.   Railroads. 

A  privilege  tax  of  fifty  dollars  per  annum  on  lecture  ix. 
every  sleeping  car  or  coach  used  or  run  over  a^'^""'^^  ^* 
railroad  in  Tennessee,  and  not  owned  or  run  by 
the  railroad  on  which  it  was  run  or  used,  was 
held  to  be  void  so  far  as  it  applied  to  the  inter- 
state transportation  of  passengers  carried  over 
railroads  in  Tennessee  into  or  out  of  or  across 
that  State,  in  sleeping  cars  owned  by  a  corpora- 
tion of  Kentucky,  and  leased  by  it  to  Tennessee 
corporations,  the  latter  receiving  the  transit  fare, 
and  the  former  the  compensation  for  the  sleep- 
ing accommodations.^ 

A  State  statute  requiring  locomotive  engineers 
on  railroad  trains  to  obtain  licenses  from  the 
State  before  being  permitted  to  run  trains  within 
the  State  is  not  a  regulation  of  commerce  when 
applied  to  engineers  on  through  trains  coming 
into  the  State  from  another  State,  or  going  from 
it  to  another  State.''^ 

A  State  statute  which  levies  a  tax  upon  the 
gross  receipts  of  railroads  for  the  carriage  of 
goods  and  passengers  into,  out  of,  or  through 
the  State,  is  a  tax  upon  commerce  among  the 
States,  and  therefore  void.  The  States  cannot 
be  permitted,  under  the  guise  of  a  tax  upon 
business  within  their  borders,  to  impose  a  bur- 
den upon  commerce  within  the  States,  when  the 
business  so  taxed  is  itself  interstate  commerce.^ 

1  Pickardv.  Pullman  Soitthern  Car  Co.,  117  U.  S.  34. 

2  Smith  V.  Alabama,  124  U.  S.  465. 
8  Fargo  v.  Michigan,  121  U.  S.  230. 


480 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  IX. 
Railroads. 


Quarantine. 


Tax  on  commerce. 


Congress  has  authority,  m  the  exercise  of  its 
power  to  regulate  commerce  among  the  several 
States,  to  construct  or  authorize  the  construc- 
tion of  raih^oads  across  the  States  and  Terri- 
tories of  the  United  States ;  and  the  franchises 
thus  conferred  cannot,  without  its  permission, 
be  taxed  by  the  States.^ 

5.    Quarantine. 

States  may  enact  quarantine  laws  which 
amount  to  regulations  of  commerce,  though  not 
intended  to  be  so,  and  maintam  them  until  Con- 
gress acts  in  the  matter  by  covering  the  same 
ground,  or  by  forbidding  State  legislation.'^ 

6.    Tax  on  Commerce. 

A  municipal  ordinance  of  the  city  of  New  Or- 
leans to  establish  the  rate  of  license  for  profes- 
sions, callings,  and  other  business,  which  assesses 
and  directs  to  be  collected  a  tax  from  persons 
owning  and  running  towboats  to  and  from  the 
Gulf  of  Mexico  and  the  city  of  New  Orleans  is 
a  regulation  of  commerce  among  the  States,  and 
is  an  infringement  of  the  provisions  of  Article 
1,  section  8,  paragraph  3,  of  the  Constitution;^ 

The  act  of  Congress  of  August  3,  1882,  "to 
regulate  immigration,"  which  imposed  upon  the 
owners  of  steam  or  sailing  vessels  bringing  pas- 
sengers from  a  foreign  port  into  a  port  of  the 
United  States,  a  duty  of   fifty  cents  for   every 

1  California  v.  Central  Pacific  Railroad  Co.,  127  L^.  S.  L 

*  Morgan's  Steamship  Co.  v.  Louisiana,  118  U.  S.  455. 

*  Moran  v.  New  Orleans,  112  U,  S.  69. 


NOTES   UPON   LECTURE    IX.  481 

such  passenger,  not  a  citizen  of  this  country,  was  lecture  ix. 
a  valid  exercise  of  the  power  to  regulate  com- '^^^ "" '°"'™''*^"- 
merce  with  foreign  nations.^ 

The  business  of  receiving  and  landing  of  pas- 
sengers and  freight  is  incident  to  their  trans- 
portation, and  a  tax  upon  such  receiving  and 
landing  is  a  tax  upon  transportation  and  upon 
commerce,  interstate  or  foreign,  involved  in  such 
transportation.^ 

7.    Telegraphs. 

A  State  statute  intended  to  regulate,  or  to  Telegraphs, 
tax,  or  to  impose  a  restriction  upon  the  trans- 
mission of  persons,  or  property,  or  telegraphic 
messages,  from  one  State  to  another,  is  not 
within  that  class  of  legislation  which  a  State 
may  enact,  in  the  absence  of  legislation  by  Con- 
gress; and  such  statutes  are  void,  even  as  to 
the  part  of  such  transmission  within  the  State.^ 
The  judgment  in  this  case  was  announced  on 
the  25th  of  October,  1886,  Mr.  Justice  Miller 
delivering  the  opinion  of  the  court.  It  is  not 
too  much  to  say  that  it  was  the  immediate 
cause  of  the  passage  of  the  "  act  to  regulate 
commerce,"  commonly  known  as  the  Interstate 
Commerce  Act.^ 

The  reserved  police  power  of  a  State  under 
the  Constitution,    although   difficult   to   define, 


1  Head  Money  Cases,  112  U.  S.  580. 

'•2  Gloucester  Ferry  Company  v.  Pennsylvania,  114  U.  S.  196. 
3  Wabash,  St.  Louis  d'c.  Baihcayv.  Illi7iois,  118  U.  S.  557. 
*  24  Stat.  379,  c.  104 ;  amended  March  2,  1889,  25  Stat.  855, 
c.  382. 


482 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  IX. 
Telegraphs. 


does  not  extend  to  the  regulation  of  the  deliv- 
ery at  points  without  the  State  of  telegraphic 
messages  received  within  the  State ;  but  the 
State  may,  within  the  reservation  that  it  does 
not  encroach  upon  the  free  exercise  of  the  pow- 
ers vested  in  Congress,  make  all  necessary  pro- 
visions in  respect  of  the  buildings,  poles,  and 
wires  of  the  telegraph  companies  within  its 
jurisdiction,  which  the  comfort  and  convenience 
of  the  community  may  require.^ 

A  sino;le  tax  assessed  under  the  laws  of  a 
State  upon  receipts  of  a  telegraph  company, 
which  were  partly  derived  from  interstate  com- 
merce and  partly  from  commerce  within  the 
State,  and  which  were  capable  of  separation,  but 
were  returned  and  assessed  in  gross  and  without 
separation  or  apportionment,  is  invalid  in  propor- 
tion to  the  extent  that  such  receipts  were  derived 
from  interstate  commerce,  but  is  otherwise  valid."^ 


Spirituous 
liquors. 


8.    Sjnrituous  Liquors. 

A  State  law  prohibiting  the  manufacture  and 
sale  of  intoxicating  liquors  is  not  repugnant  to 
the  Constitution  of  the  United  States.^ 

A  State  cannot,  for  the  purpose  of  protecting 
its  people  against  the  evils  of  intemperance, 
enact  laws  which  regulate  commerce  between  its 
people  and  those  of  other  States  of  the  Union, 

1  Western  Union  Teleyraph  Co.  v.  Pendleton,  122  U.  S.  347. 

2  Eatterman  v.  Western  Union  Tel.  Co.,  127  U.  S.  411.  See  also 
Lelovp  V.  Port  of  Mobile,  127  U.  S.  640  ;  Western  Union  Tel.  Co. 
V.  Alabama,  182  U.  S.  472. 

3  Foster  v.  Kansas,  112  U.  S.  201. 


NOTES    UPON    LECTURE    IX.  483 

unless  the  consent  of  Congress,  express  or  im-  lecture  ix. 
plied,  is  first  obtained.^  spirituous 

^  '  liquors. 

The  sale  of  spirituous  liquors  by  retail  and  in 
small  quantities  may  be  regulated  or  prohibited 
by  State  legislation,  without  violating  the  Con- 
stitution or  laws  of  the  United  States.^ 

9.  Discrmiinating  License  Taxes. 
The  act  of  the  legislature  of  Tennessee  pro-  Discriminating 
viding  that '•  all  drummers  and  all  persons  j^q^^  ^'^^"^^  **^^*- 
having  a  regular  licensed  house  of  business  in 
the  taxing  district  of  Shelby  County,  offering 
for  sale  or  selling  goods,  wares,  or  merchandise 
therein,  by  sample,  shall  be  required  to  pay  to 
the  county  trustee  the  sum  of  $10  per  week,  or 
$25  per  month  for  such  jDrivilege,"  ajoplies  to 
persons  soliciting  the  sale  of  goods  on  behalf  of 
individuals  or  firms  doing  business  in  another 
State ;  and,  so  far  as  it  applies  to  them,  it  is  a 
regulation  of  commerce  among  the  States,  and 
violates  the  provision  of  the  Constitution,  which 
grants  to  Congress  the  power  to  make  such 
regulations.^ 

10.    Discrimiyiating  Taxes. 
A  tax  imposed  by  a  State  statute  upon  an  oc- Discriminating 
cupation  which  necessarily  discriminates  against  *^^^^* 

1  Bowman  v.  Chicago  <£•  Xorthwestern  Railvaii  Co.,  125  U.  S. 
465.  See  Mngler  v.  Kansas,  123  U.  S.  02^;  Judd  v.  Pearsonyl28 
XJ.  S.  1 ;  Leisy  v.  Hardin,  135  U.  S.  100 ;  Croicley  v.  Christensen, 
137  U.  S.  86.  "  •     • 

2  Crmdey  v.  Christensen,  137  U.  S.  86. 

3  Robhins  v.  Shelby  Coxinty  Taximi  District,  120  U.  S.  489.  See 
also  Corson  v.  Maryland,  120  U.  S.  502  ;  Asher  v.  Texas,  128  U.  S. 
129 ;  Stoutenhurijh  v.  Hennick,  129  U.  S.  141  ;  McCall  v.  Califurnia, 
136  U.  S.  104. 


484 


LECTURES    ON    CONSTITUTIONAL    LAW. 


lecturk  IX.       the  introduction   and    sale   of   the    products   of 
f^es'"""'"'"'^     another  State,  or  against  the  citizens  of  another 

State,  is  repugnant  to  the  Constitution  of   the 

United  States.^ 

11.    Food  Inspection. 

Food  inspection.  A  law  providing  for  the  inspection  of  animals, 
whose  meats  are  designed  for  human  food,  can- 
not be  regarded  as  a  rightful  exercise  of  the 
police  power  of  the  State,  if  the  inspection  pre- 
scribed is  of  such  a  character,  or  is  burdened 
with  such  conditions,  as  will  prevent  the  intro- 
duction into  the  State  of  sound  meats,  the  prod- 
uct of  animals  slaughtered  in  other  States.^ 

The  Virginia  statute  of  February  18,  1890, 
makes  it  unlawful  to  offer  for  sale,  within  the 
limits  of  that  State,  any  beef,  veal,  or  mutton 
from  animals  slaughtered  one  hundred  miles  or 
more  from  the  place  at  which  it  is  offered  for 
sale,  unless  it  has  been  previously  inspected  and 
approved  by  local  inspectors  appointed  under 
that  act.  It  fixes  the  inspector's  compensation 
at  one  cent  a  pound,  to  be  paid  by  the  owner  of 
the  meats.  It  does  not  require  the  inspection 
of  fresh  meats  from  animals  slaughtered  within 
one  hundred  miles  from  the  place  in  Virginia 
at  which  such  meats  are  offered  for  sale.  The 
act  was  held  to  be  void,  as  being  in  restraint  of 
commerce  among  the  States,  and  as  imposing  a 
discriminatino;  tax.^ 


1  Walling  v.  Michiflan,  116  U.  S.  446. 

2  Minnesota  v.  Barber,  136  U.  S.  31.3. 
*  Brimmer  v.  Rebman,  138  U.  S.  78. 


X. 

THE   RIGHT   OF   TRIAL   BY   JURY.^ 


Article  I,  Section  9,  Paragraph  2.     The  Privi-  Lectueb  X. 
lege  of  the  Writ  of  Habeas  Corpus  shall  not  be  sus- 
pended, unless  when  in  Cases  of  Rebellion  or  Invasion 
the  public  Safety  may  require  it. 

Article  III,  Section  2,  Paragraph  1.  The  judi- 
cial Power  shall  extend  to  all  Cases,  in.  .  .  Equity, 
arising  under  this  Constitution,  the  Laws  of  the 
United  States,  and  Treaties  made,  or  which  shall  be 
made,  under  their  Authority. 

Article  III,  Section  2,  Paragraph  3.  The  trial 
of  all  Crimes,  except  in  Cases  of  Impeachment,  shall 
be  by  Jury  ;  and  such  Trial  shall  be  held  in  the  State 
where  the  said  Crimes  shall  have  been  committed  ;  but 
when  not  committed  within  any  State,  the  Trial  shall 
be  at  such  Place  or  Places  as  the  Congress  may  by 
Law  have  directed. 

Article  V  of  the  Amendments.  No  person  shall 
be  held  to  answer  for  a  capital,  or  otherwise  infamous 
crime,  unless  on  a  presentment  or  indictment  of  a 
Grand  Jury,  except  in  cases  arising  in  the  land  or 
naval  forces,  or  in  the  Militia,  when  in  actual  service 
in  time  of  War  or  public  danger  ;  nor  shall  any  per- 
son be  subject  for  the  same  offence  to  be  twice  put  in 
jeopardy  of  life  or  limb  ;  nor  shall  be  compelled  in 
any  Criminal  Case  to  be  a  witness  against  himself, 
nor  be  deprived  of  life,  liberty,  or  property,  without 
due  process  of  law  ;  nor  shall  private  property  be 
taken  for  public  use,  without  just  compensation. 

Article  VI  of  the  Amendments.  In  all  criminal 
prosecutions,  the  accused  shall  enjoy  the  right  to  a 

1  C'est  done  le  jury  civil  qui  a  r^ellement  sauv6  les  libertfis  de 
I'Angleterre.     De  Tocqueville. 

485 


486  LECTURES    OX    CONSTITUTIONAL    LAW. 

Lecture  X.  speedy  and  public  trial,  by  an  impartial  jury  of  the 

State  and  district  wherein  the  crime  shall  have  been 
committed,  which  district  shall  have  been  previously 
ascertained  by  law,  and  to  be  informed  of  the  nature 
and  cause  of  the  accusation  ;  to  be  confronted  with 
the  witnesses  against  him ;  to  have  compulsory 
process  for  obtaining  Witnesses  in  his  favour,  and  to 
have  the  Assistance  of  Counsel  for  his  defence. 

Article  VII  of  the  Amendments.  In  suits  at 
common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall 
be  preserved,  and  no  fact  tried  by  a  jury  shall  be 
otherwise  re-examined  in  any  Court  of  the  United 
States  than  according  to  the  rules  of  the  common  law. 

The  Constitution       ''No  One   familiar  with  the   common  law  of 
founded  upon       England  can  read  the  Constitution  of  the  United 

Enghsn  law.  o 

States  without  observing  the  great  desire  of  the 
Convention  which  framed  that  instrument  to 
make  it  conform  as  far  as  possible  with  that 
law.  One  would  suppose  that  the  leaders  of  a 
revolutionary  movement  of  eight  years'  duration 
or  more,  the  purpose  of  which  was  to  emancipate 
the  newly  formed  States  from  the  dominion  of 
Great  Britain,  would  have  come  out  of  that 
struggle  with  resentments  arising  from  a  sense 
of  injury  at  the  hands  of  that  government  which 
would  have  created  a  prejudice  against  its  laws 
and  their  system  of  administration.  On  the 
contrary,  it  seems  obvious  from  the  instrument 
which  they  produced  as  the  fundamental  and 
organic  law  of  a  new  government  for  a  new 
country,  that  their  attachment  for  the  old  laws 
and  even  for  the  old  general  form  of  political 
government  remained  almost  unaffected. 

1  This  is  Lecture  VIII  delivered  before  the  classes  of  the  Uni- 
versity Law  School. 


RIGHT    OF    TRIAL    BY    JURY.  487 

To  look  at  the  general  outlines  organizing  the  i.f.cture  x. 
new  government  nito  its  various  branches,  tliere  f,„„„i^.,i  „p„„ 
is  but  little  departure  from  that  of  the  English  English  law. 
government.  The  President,  the  Sefiate,  and 
the  House  of  Representatives  correspond  in  es- 
sential features  with  the  King,  Lords,  and  Com- 
mons of  Great  Britain.  And  although  tliere 
was  a  necessit}^  arising  from  the  bringing  to- 
gether of  thirteen  different  States  mto  one 
general  government,  with  a  recognition  of  many 
of  the  most  important  powers  of  government 
left  in  the  States  themselves,  to  vary  in  some 
respects  the  powers  which  were  confided  to  the 
President,  the  Senate,  and  the  House  of  Repre- 
sentatives from  those  which  had  by  immemorial 
usage  come  to  be  the  powers  of  the  King,  the 
House  of  Lords,  and  the  House  of  Commons  of 
Great  Britain,  yet  the  analogy  is  very  close.  It 
has  often  been  said  that  Mr.  Hamilton,  who 
perhaps  of  all  other  men  in  the  Convention  which 
framed  this  Constitution  most  strongly  impressed 
his  views  upon  that  instrument,  desired  a  still 
closer  conformity  to  the  British  model  in  the 
matter  of  stronger  powers  in  the  Federal  Gov- 
ernment, and  especiall}^  in  the  Senate  and  Execu- 
tive. 

The  first  great  nation  of  the  earth  which  sue-  unsuccessful 
ceeded  us  in  the  process  of  revolution  and  form-  ^^^"'^^^  attempts 

A  at  framing  cou- 

ing   a   new    government,  namely,   the    French,  stitutious. 
acted  in  a  very  different  manner.    They  abolished 
at  one  blow  the  existence  of  the  King,  or  of  any 
recognized  power  which  represented   the  func- 
tions of  the  Crown.     They  reposed  all  the  power 


488 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lkcturb  X. 

Unsuccessful 
Freiii;li  attempts 
sit  framing  cou- 
stitutions. 


ED^lish  features 
retained  in  the 
Constitution. 


Distinction  be- 
tween law  and 
equity. 


of  the  government  in  a  single  body  elected 
directly  by  the  people.  They  also  abolished 
during  the  course  of  their  revolutionary  pro- 
ceedings Iheir  entire  body  of  civil  law,  and  sub- 
stituted therefor  a  new  code  called  the  "Code 
Napoleon,"  which  has  been  supposed  by  many 
jurists  to  be  the  ablest  code  of  laws  ever  formed 
for  the  government  of  a  people.  The  instability 
of  the  government  which  resulted  from  this 
action  of  the  French  people  and  of  all  govern- 
ments formed  by  that  nation  since  the  revolu- 
tion of  1793,  may  well  be  used  as  an  argument 
agrainst  such  violent  and  sudden  chans^es.  Cer- 
tainly  if  any  deduction  on  that  subject  is  to  be 
made  from  the  success  and  stability  given  to  a 
new  government  by  its  adherence  to  the  best 
maxims  of  the  old  one  out  of  which  it  was 
formed,  the  history  of  the  United  States  pre- 
sents that  argument  in  its  best  form. 

Not  only  did  the  framers  of  the  new  Consti- 
tution follow  as  well  as  they  might  the  general 
polity  of  the  English  system,  but  they  evinced 
an  ardent  desire  to  preserve  the  principles  which 
had  been  accepted  as  part  of  the  general  admin- 
istration of  the  law  among  our  ancestors.  This 
is  shown  in  many  of  the  provisions  of  the  Con- 
stitution. Among  others,  the  article  concerning 
the  judicial  powers  of  the  new  government 
establishes  its  jurisdiction  as  extending  to  all 
cases  in  admiralty,  and  in  law,  and  in  equity, 
thus  recognizing  the  English  separation  of  these 
three  classes  of  legal  controversies  as  being  gov- 
erned by  a  separate  jurisdiction.     At  least  such 


RIGHT    OF    TRIAL    BY    JURY.  489 

has  been  the  construction  placed  upon  that  in-  lectukk  x. 
strument  by  the  courts  of  the  country  without '"''*^'"^''°"^®" 

.  '^  tween  law  and 

much  question.  It  has  been  repeatedly  decided  equity, 
that  the  jurisdiction  in  equity,  which  was  a  very- 
peculiar  one  under  the  English  system  of  legal 
administration,  remains  in  the  courts  of  the 
United  States  as  it  was  at  the  time  they  sepa- 
rated from  that  country,  and  that  one  of  the 
distinctive  features  of  the  difference  between 
law  and  equity,  namely,  that  at  law  there  is  a 
right  to  a  trial  by  jury,  and  in  equity  there  is 
none,  has  continued  to  the  present  day.  And 
it  is  a  very  grave  question,  one  which  has  never 
been  brought  to  the  attention  of  the  courts, 
because  Congress  has  never  attempted  to  exer- 
cise any  such  authority,  whether  the  Congress 
of  the  United  States  can  make  any  change  in  the 
equitable  jurisdiction  of  the  courts  of  the  United 
States,  and  if  so,  to  what  extent  it  can  be  done. 

Another  very  important  instance  in  which  the  Habeas  corpus, 
venerable  maxims  of  the  common  law  have  been  • 

thought  worthy  of  a  place  in  the  organic  law  of 
this  country,  is  that  concerning  the  writ  of 
habeas  corpus,  the  great  writ  by  which  a  person 
unjustly  imprisoned  may  cause  himself  to  be 
brought  before  the  proper  judicial  tribunal,  and 
have  the  nature,  cause,  and  legality  of  that  im- 
prisonment inquired  into.  Among  the  limi- 
tations imposed  by  section  9  of  Article  I,  is 
the  declaration  that  "  the  privilege  of  a  writ  of 
habeas  corpus  shall  not  be  suspended,  unless 
when  in  cases  of  rebellion  or  invasion,  the  public 
safety  may  require  it." 


490 


LECTURES    ON    CONSTITUTIONAL    LAW. 


I.KCTURE    X. 

Kijjlit  of  trial  by 
jury. 


The  jury  system 
of  England. 


Grand  jury. 


Of  a  similar  character,  and  perliaps  of  much 
more  importance,  is  the  subject  to  which  I  invite 
your  attention  this  evening  as  it  is  found  in  the 
Constitution,  namely,  that  of  the  right  of  trial 
by  jury.  This  right  has  been  the  subject  of  such 
inquiry  into  its  origin  and  history,  and  of  such 
glowing  eulogy  by  all  those  who  believe  in  the 
beauties  of  the  common  law,  and  by  many  who 
do  not,  as  well  as  of  criticisms  upon  its  value, 
which  have  become  more  frequent  in  modern 
times,  that  I  must  rely  upon  your  general  read- 
ing upon  this  subject  without  myself  entering 
upon  its  discussion.^ 

The  jury  system  of  the  English  at  the  time 
of  the  adoption  of  our  Constitution  divided  it- 
self into  two  branches.  One  of  these  was 
called  the  grand  jury,  whose  purpose  and  func- 
tion was  to  make  inquiry  as  to  crimes  committed 
in  the  county,  and  presentments  to  the  court  of 
such  charges  as  they  thought  proper  growing  out 
of  that  investigation ;  and  also  when  indict- 
ments for  crimes  were  submitted  to  them  by  the 
law  officers  of  the  government,  it  was  their  duty 
to  pass  upon  them  by  endorsing  them  as  true 
bills,  or  ignoring  them  as  not  supported  by  the 


1  In  1215  personal  rights  were  secured  to  the  subject  by  Ma,gna 
Charta,  which  declared  :  "  No  freeman  shall  be  taken  or  impris- 
oned, or  be  disseized  of  his  freehold  or  liberties,  or  free  customs, 
or  be  outlawed  or  exiled,  or  any  otherwise  damaged,  nor  will  one 
pass  upon  him,  nor  send  upon  him,  but  by  lawful  judgment  of  his 
peers,  or  by  the  law  of  the  land."     2  Inst.  45. 

Lord  Coke  says  in  his  comments  upon  this  clause  that  it  "  hath 
the  first  place,  because  the  liberty  of  a  man's  person  is  more 
precious  than  all  the  rest  which  follows." 


EIGHT    OF    TRIAL    BY    JURY.  .  491 

facts  before  them.     This  grand  jury  consisted  of  lecture  x. 
a  number  of  jurors,  varying  from   twelve  or  flf.  cirand  jury, 
teen    to    twenty-four,    but    the    concurrence    of 
twelve  of  that  number  was  always  required  in 
making  a  presentment  or  finding  an  indictment. 

The  other  form  of  jury  is  the  one  before  which  Petit  jury, 
the  trial  actually  takes  place.  "  This  means  the 
examination  before  a  competent  tribunal,  [the 
jury,]  according  to  the  laws  of  the  land,  of  the 
facts  put  in  issue  for  the  purpose  of  determining 
such  issue."  ^ 

This  jury  has  always  been  composed,  at  least 
in  modern  times,  of  twelve  men,  and  its  finding 
of  issues  presented  to  it  can  only  be  made  by  the 
concurrence  of  all  the  twelve.  These  jurors  are 
supposed  to  be  impartial,  and  the  manner  of 
their  appointment  or  selection  has  been  pre- 
scribed by  acts  of  Congress  as  regards  trials  in 
the  Federal  courts,  and  by  statutes  of  the  States 
so  far  as  trials  in  the  State  courts  are  concerned, 
with  a  view  to  secure  this  object.  Whether 
it  is  in  the  power  of  Congress  to  modify  this  sys- 
tem, by  prescribing  a  jury  of  less  than  twelve 
men,  or  by  giving  validity  to  a  verdict  which 
represents  less  than  the  whole  number  of  twelve, 
are  questions  which  have  never  been  decided 
because  Congress  has  never  attempted  to  vary 
this  rule.  There  have  been  decisions  of  vari- 
ious  courts  that  this  could  not  be  done,  that 
the  word  "  jury "  as  used  in  the  Constitution 
means  "  ex  vi  termini,"  a  tribunal  of  twelve  men, 

1  United  States  v.  Curtis,  4  Mason,  232. 


492 


LECTURES    ON    CONSTITUTIONAL   LAW. 


Lecture  X. 
Petit  jury. 


The  Seventh 
Ameudment. 


It  has  relation  to 
the  common  law 
as  understood  in 
England. 


and  that  its  verdict  must  be  unanimous  to  be 
the  verdict  of  a  jury  under  the  Constitution. 
The  question,  so  far  as  I  am  aware,  has  never 
been  decided  by  tlie  Supreme  Court  because  no 
law  has  ever  been  passed  by  Congress  to  vary  or 
change  the  common  law  rule.  In  no  other  way 
could  it  come  before  that  court. 

The  right  of  trial  by  jury  has  relation  to  civil 
cases  and  to  prosecutions  for  crimes.  The  origi- 
nal Constitution  contained  no  specific  reference  to 
such  trial  in  civil  cases,  but  the  Seventh  Article 
of  the  Amendments  reads  as  follows :  — 

"  In  suits  at  common  law,  where  the  value  in 
controversy  shall  exceed  twenty  dollars,  the 
right  of  trial  by  jury  shall  be  preserved  ;  and 
no  fact,  tried  by  a  jury,  shall  be  otherwise  re- 
examined in  any  court  of  the  United  States,  than 
according  to  the  rules  of  the  common  law." 

The  first  thing  to  be  observed  about  this  Arti- 
cle is  that  it  prescribes  this  mode  of  trial  in 
"  suits  at  common  law.''  It  does  not  use  the 
same  words  as  the  clause  extending  the  judicial 
power  "  to  all  cases  in  law  and  equity."  It  is 
to  be  inferred,  therefore,  that  trial  by  jury,  as 
imposed  by  the  Constitution,  has  relation  to  the 
common  law  as  it  was  understood  in  England 
and  to  the  right  to  such  a  trial  in  that  class  of 
cases.  This  distinction  may  be  important  in 
regard  to  a  class  of  cases  where  a  summary 
remedy  is  given  by  a  statute,  which  is  itself  a 
departure  from  the  common  law  and  at  variance 
with  it.  How  far  in  this  anomalous  class  of 
cases,  which,  while  they  may  be  said  to  be  cases 


RIGHT    OF    TRIAL    BY    JURY.  493 

at  law,  as  distinguished  from  cases  in  equity,  are  lecture  x. 
not  "suits  at  common  law,"  the  parties  would  J' ''^' '""'^'7 ^'^ 

'  ^  the  common  law 

have  a  right  to  demand  a  trial  by  jury,  it  is  not  as  understood  lu 
my  purpose    at   present  to  inquire.     Nor   is   it  '°^^" 
material  why  the    sum    of  twenty  dollars  was 
established  as  the  line  above  which  the  Consti- 
tution gave  the  right  to  a  trial  by  jury  and  did 
not  do  so  below  it. 

This  Article  of  the  Amendments  to  the  Con-  it  applies  only  to 
stitution,  as  well  as  all  of  the  others  from  one  *^^  ^'"'^^'^  ^'^'^•'• 
to  eight   inclusive,  applies  to  the  powers  exer- 
cised by  the  Government  of  the  United  States, 
and  not  to  those  of  the  States.     This  has  been 
repeatedly  decided.^ 

But  while  the  effect  given  by  this  Article  as  Effect  of  a  ver- 
to  a  fact  tried  by  a  jury  has  relation  to  such 
effect  in  the  courts  of  the  United  States,  it 
applies  equally  to  verdicts  found  by  juries  in 
the  State  courts  ;  that  is  to  say,  that  in  a  court 
of  the  United  States  a  fact  once  found  by  a  jury 
of  a  State  court  or  of  a  Federal  court  shall  not 
be  re-examined  in  any  other  manner  than  ac- 
cording to  the  rules  of  the  common  law.  This 
conclusiveness  given  to  the  verdict  of  a  jury  is 
in  accordance  with  the  common  law  of  England, 
and  is  an  additional  evidence  of  the  sanctity 
with  which  the  right  of  trial  by  jury  is  held 
both  in  that  country  and  this.  Let  it  also  be 
observed  that  this  Article  does  not  prescribe  as 
an  arbitrary  rule  to  the  courts  that  all  cases 
Dmst  be  tried  by  a  jury  which  are  suits  at  com- 

1  Livingston  v.  Moore,  7  Pet.  469 ;  The  Justices  v.  Murray,  9 
Wall.  274  ;  Edwards  v.  Elliott,  21  Wall.  532. 


494 


LECTURES    ON    CONSTITUTIONAL    LAW. 


I.icrxuRE  X. 
Kffoct  of  a  ver- 
dict. 


A  jury  may  be 
waived. 


mon  law  and  exceed  twenty  dollars  in  value, 
but  that  it  is  the  rigid  of  any  party  to  such  a 
suit  to  have  a  trial  by  a  jury  if  he  demands  it. 
The  parties  can  waive  this  right  ^  and  submit 
the  case  to  the  court  without  a  jury,  in  which 
case  the  judgment  of  the  court  would  be  equally 
binding  as  if  there  had  been  a  verdict  of  a  jury ; 
and  in  practice  in  this  country,  both  in  the  Fed- 
eral and  State  courts,  a  very  large  proportion  of 
the  trials  of  issues  of  fact  are  by  the  judge  or 
judges  of  those  courts  without  the  aid  of  a  jury. 
In  the  Federal  courts  the  consent  of  all  the 
parties  concerned  is  essential  to  the  validity  of 


1  Tliough  this  right  to  a  trial  by  jury  embraces  all  suits  not  in 
equity  or  admiralty  {Parsons  v.  Bedford^  3  Pet.  433)  ;  yet  parties 
may  waive  the  right  {Bond  v.  Brown,  12  How.  254  ;  Morgan  v. 
Gay,  19  Wall.  81  ;  Baylis  v.  Travellers'  Ins.  Co.,  113  U.  S.  316  ; 
Flanders  v.  Tioeed,  9  Wall.  425  ;  Henderson's  Distilled  Spirits,  14 
Wall.  44 ;  Phillips  v.  Preston,  5  How.  278)  ;  and  in  a  suit  in  equity 
the  court  may  not  only  find  the  facts  itself  without  impairing  the 
right  of  trial  by  jury,  but  it  may  disregard  the  findings  of  fact  by 
a  jury,  if  it  thinks  them  wrong  {Bnsey  v.  Gallagher,  20  Wall.  070). 
So,  too,  the  mode  of  proceeding  in  the  Court  of  Claims,  under  the 
statutes,  is  constitutional.  McElrath  v.  United  States,  102  U.  S. 
426.  This  constitutional  provision,  so  far  as  it  relates  to  civil 
actions,  is  a  restriction  only  upon  courts  of  the  United  States. 
Edwards  v.  Elliott,  21  Wall.  532,  557.  State  courts  are  not  forbid- 
den, even  by  the  provisions  in  the  Fourteenth  Amendment  as  to 
"  due  process  of  law."      Walker  v.  Souvinet,  92  U.  S.  90. 

This  guaranty  of  trial  by  jury  is  as  operative  in  time  of  war  as 
in  time  of  peace  ;  is  equally  binding  upon  rulers  and  people,  at  all 
times  and  under  all  circumstances.  Military  commissions  organ- 
ized during  the  late  civil  war,  in  a  State  not  invaded  and  not 
engaged  in  rebellion,  in  which  the  Federal  courts  were  open  and 
in  the  proper  and  unobstructed  exercise  of  their  judicial  functions, 
had  no  jurisdiction  to  try,  convict,  or  sentence,  for  any  criminal 
offence,  a  citizen  who  was  not  a  resident  in  a,  rebellious  State,  nor 
a  prisoner  of  war,  nor  a  person  in  the  military  or  naval  service, 
and  Congress  could  not  invest  them  with  that  power.  Ex  parte 
MilUgan,  4  Wall.  2. 


RIGHT    OF    TRIAL    BY    JURY.  495 

this  form  of  trial.     Indeed  it  had  been  decided  lkcture  x. 
prior  to  the  act  of  Contrress  of  1865^  that  there  ^^^''^  "^  ^^^^'^ » 

•■■  ~  judgment. 

could  be  no  writ  of  error  or  ajopeal  to  a  judg- 
ment of  an  inferior  court  in  a  suit  at  common 
law  in  which  the  parties  had  submitted  the  case 
to  the  court  without  a  jury,  because,  as  was  held 
by  the  Supreme  Court  of  the  United  States,  such 
judgment  was  in  effect  but  a  mere  arbitration. 
But  by  that  statute  Avhere  the  parties  waive  a 
jury  by  a  stipulation  in  writing,  the  finding  of 
the  court  upon  the  facts,  which  might  be  either 
general  or  special,  was  to  have  the  same  effect 
as  the  verdict  of  a  jury,  and  the  judgment 
might  be  reviewed  by  the  Supreme  Court  upon 
a  writ  of  error  or  upon  a2:)peal,  the  review  ex- 
tending to  the  sufficiency  of  the  facts  found  to 
support  the  judgment,  and  to  such  exceptions 
as  might  have  been  taken  and  presented  by  a 
bill  of  exceptions  during  the  progress  of  the 
trial.^  These  provisions  of  the  act  of  1865  are 
embodied  in  sections  649  and  700  of  the  Revised 
Statutes  of  the  United  States. 

The  language  of  this  Article  is  that  "no  fact  now  judgments 
tried  by  a  jury  shall  be  otherwise  re-examined  °" '^  ^'"'^^''^'^  *^"^"^*^ 

],      ,         rr     '       1     r<  t    ^^  re-examined  at 

m  any  court  oi  the  U  nited  States,  than  accord-  the  common  law. 
ing  to  the  rules  of  the  common  law."  The 
common  law  admitted  of  but  two  modes  of 
re-examining  the  verdict  of  a  jury.  One  of 
these  was  by  a  motion  for  a  new  trial  in  the 
same  proceeding,  and  usually  in  the  same  court  in 


1  13  Stat.  501,  c.  8G,  §  4. 

2  A^orris  v,  Jackson,  9  Wall.  125. 


496  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  X.        wliich  tliG  verdict  WRS  rendered.     The  otlier  was 
How  jud-inents    I      gome   siipervisorv  or  appellate  court  which 

on  a  verdict  could     <J  ^  j  i  i 

be  re-exiimined  at  had  jurisdiction  upon  a  writ  of  error  in  certain 

the  common  law.      -,  /.  .  i*i-i  tj  t 

classes   oi   cases  to  set   aside    the  verdict    and 
grant  a  new  trial. 

These  two  modes  of  re-examining  a  verdict 
and  affirming  it  or  setting  it  aside  proceeded 
upon  somewhat  different  principles.  The  court 
of  original  jurisdiction,  in  which  the  case  was 
tried,  had  an  almost  unlimited  power  of  setting 
aside  the  verdict  for  errors  of  law  committed 
by  the  court  itself  during  the  progress  of  the 
trial,  for  insufficiency  of  the  evidence  to  sustain 
the  verdict  of  the  jury,  and  for  other  causes  so 
numerous  and  varying  that  they  cannot  even  be 
enumerated  here  ;  but  it  may  be  said  that  the 
power  of  the  court  in  that  proceeding,  upon  a 
proper  showing,  to  re-examine  the  verdict,  was 
only  governed  by  a  sound  legal  discretion.  The 
re-examination  by  an  appellate  court  on  a  writ 
of  error,  or  in  any  otlier  mode  by  which  such  a 
case  was  carried  to  a  superior  court  for  review, 
extended  only  to  errors  of  law  committed  by 
the  court  in  the  progress  of  the  case,  and  which 
were  presented  by  the  record  and  by  bills  of 
exception.  By  this  restriction  the  appellate 
court  was  forbidden  at  common  law  to  enter 
into  an  examination  of  the  weight  of  evidence 
and  the  soundness  of  the  verdict  of  the  jury, 
except  as  that  was  affected  by  some  matter  of 
law  presented  in  the  course  of  the  trial.  In  the 
case  of  Parsons  v.  Bedford,  3  Pet.  433,  448,  Mr. 
Justice  Story,  representing  the  court,  says  :  — 


EIGHT    OF    TRIAL    BY    JURY.  497 

"  The  only  modes  known  to  the  common  law,  lecture  x. 
to  re-examine  such  facts,  are  the  g-ranting;  of  ^  "o^  judgments 

'  ~  c5  on  a  verdict  could 

new  trial  by  the  court  where  the  issue  was  tried,  be  re-examined  at 

,i'i,T  J  „  1  ,  11        the  common  law. 

or  to  which  the  record  was  properly  returnable ; 
or  the  award  of  a  venire  facias  de  novo,  by  an 
appellate  court,  for  some  error  of  law  which 
intervened  in  the  proceedings.  The  judiciary 
act  of  1789,  c.  20,  §  17,  has  given  to  all  the 
courts  of  the  United  States  'power  to  grant  new 
trials  in  cases  where  there  has  been  a  trial  by 
jury,  for  reasons  for  which  new  trials  have 
usually  been  granted  in  the  courts  of  law.'  And 
the  appellate  jurisdiction  has  also  been  amply- 
given  by  the  same  act  (§§  22,  24)  to  this  court, 
to  redress  errors  of  law ;  and  for  such  errors  to 
award  a  new  trial,  in  suits  at  law  which  have 
been  tried  by  a  jury." 

The  whole  opinion  in  this  case  may  be  read 
by  you  with  profit  as  explaining  the  objects  and 
purposes  of  this  amendment  to  the  Constitution. 
See  also  Insurance  Co.  v.  Comstock,  16  Wall. 
258,  269,  where  the  following  language  is  used 
by  the  court :  — 

"  Two  modes  only  were  known  to  the  common 
law  to  re-examine  such  facts,  to  wit :  the  grant- 
ing of  a  new  trial  by  the  court  where  the  issue 
was  tried  or  to  which  the  record  was  returnable, 
or,  secondly,  by  the  award  of  a  venire  facias  de 
novo  by  an  appellate  court  for  some  error  of  law 
which  intervened  in  the  proceedings." 

As  showing  the  extent  to  which  this  doctrine 
of  the  sacredness  of  a  verdict,  in  a  case  which 
was  once  tried  by  a  jury,   even   in  the  State 


4I).S  LECTURES    ON    CONSTITUTIONAL   LAW. 

lkcture  X.        courts,  has  been  carried,  when  the  same  case  has 
How  judgments    ,         broui^ht  into  a  court  of  the  United  States, 

on  a  verdict  could  o  ' 

be  re-e:famined  at  your  attention  is  Called  to  the  case  of   Tlie  Jus- 

e common  aw.  ^^.^^^  ^  Murray,  9  Wall.  274.     It  was  there  held 

that  an  act  of  Congress  which  provided  for  the 

removal  of  a  judgment  in  a  State  court,  where 

the  cause  had  been  tried  by  a  jury,  to  the  Circuit 

Court  of  the  United  States  for  a  retrial  of  the 

facts    and    the    law,    was    unconstitutional    on 

account  of  the  Article  now  under  consideration, 

because  such  removal  implied  the  necessity  of  a 

re-examination  of  the  facts  already  found  by  the 

jury  in  the  State  court. 

The  Fourteenth         The  Only  othcr  observation  I  have  to  make  in 

Amendment.        ^^^  ^^^  ^^  ^j^^  ^g^^^  ^f  ^1^^  Constitution  of  the 

United  States  as  governing  trials  in  civil  actions 
is  that  it  has  been  contended  that  by  the  Four- 
teenth Amendment  the  right  of  trial  by  jury  in 
the  States  is  guaranteed  to  every  person  by  the 
phrase,  "  Nor  shall  any  State  deprive  any  person 
of  life,  liberty,  or  property,  without  due  process 
of  law."  This  question  was  presented,  exam- 
ined, and  decided  otherwise  in  Hurtado  v.  Cali- 
fornia, 110  U.  S.  516. 

Article  III,  section  2,  paragraph  3,  is  as  fol- 
lows :  — 

"  The  trial  of  all  crimes,  except  in  cases  of 
impeachment,  shall  be  by  jury ;  and  such  trial 
shall  be  held  in  the  State  where  the  said  crimes 
shall  have  been  committed ;  but  when  not  com- 
mitted within  any  State,  the  trial  shall  be  at 
such  place,  or  places,  as  the  Congress  may  by 
law  have  directed." 


RIGHT    OF    TRIAL    BY    JURY.  499 

And,  as  intimately  connected  with  the  same  lecture  x. 
subject,  Articles  V  and  VI  of  the  Amendments  ^^^J^'ent."'" 
are  here  presented. 

"Article  V.  No  person  shall  be  held  to  The  Fifth  Amend- 
answer  for  a  capital,  or  otherwise  infamous  ™^"*" 
crime,  unless  on  a  presentment  or  indictment  of 
a  grand  jury,  except  in  cases  arising  in  the  land 
or  naval  forces,  or  in  the  militia,  when  in  actual 
service,  in  time  of  war,  or  public  danger ;  nor 
shall  any  person  be  subject,  for  the  same  offence, 
to  be  twice  put  in  jeopardy  of  life  or  limb ;  nor 
shall  be  compelled,  in  any  criminal  case,  to  be  a 
witness  against  himself,  nor  be  deprived  of  life, 
liberty,  or  property,  without  due  process  of  law ; 
nor  shall  private  property  be  taken  for  public 
use,  without  just  compensation. 

"Article  VI.  In  all  criminal  prosecutions,  The  sixth  Amend- 
the  accused  shall  enjoy  the  right  to  a  speedy  and  ™^"^" 
public  trial,  by  an  impartial  jury  of  the  State 
and  district  wherein  the  crime  shall  have  been 
committed,  which  district  shall  have  been  pre- 
viously ascertained  by  law  ;  and  to  be  informed 
of  the  nature  and  cause  of  the  accusation ;  to  be 
confronted  with  the  witnesses  against  him  ;  to 
have  compulsory  process  for  obtaining  witnesses 
in  his  favor ;  and  to  have  the  assistance  of  coun- 
sel for  his  defence." 

You  will  see  that  the  paragraph  in  Article  III, 
above  quoted,  differs  in  its  language  from  that 
which  we  have  already  considered  in  regard  to 
trial  by  jury  in  civil  cases  as  prescribed  by  Arti- 
cle VII  of  the  Amendments.  In  the  latter  Arti- 
cle it  is  the  mere  right  to  demand  the  trial  by 


500  LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  X.        -juj-y  which  is  g-uaranteed,  and  the  parties  may 

TheSixth  Amend- •'       r  ,  .1.1, 

meut  waive  that  right  either  by  express  agreement  or 


by  failing  to  demand  a  jury,  wliile  the  hmguage 

f  the 
CoQstitutiou 


rticieiiiofthe  ^_^^^^  -^  Article  III  is  peremptory  that  "the  trial 


of  all  crimes,  except  in  cases  of  impeachment, 
shall  be  by  jury."  This  language  excludes  all 
other  modes,  whether  with  or  without  the  con- 
sent of  the  party.  A  party  may,  however,  con- 
fess his  guilt  by  a  plea  of  guilty,  and  judgment 
may  be  passed  upon  that  plea,  yet  if  there  is  an 
issue  of  fact  which  has  to  be  tried,  that  trial  can 
only  be  by  a  jury.  Indeed  it  has  been  argued  with 
a  good  deal  of  earnestness  and  plausibility  that 
in  criminal  cases  by  virtue  of  that  clause  of  the 
Constitution  the  jury  are  made  the  judge  both  of 
the  facts  and  the  law,  and  have  a  right  upon 
their  own  view  of  what  the  law  of  the  cases  may 
be,  without  regard  to  the  decisions  of  the  court 
on  the  subject,  to  find  a  verdict.  This  conten- 
tion has  been  supposed  to  be  supported  by  the 
conceded  fact  that  a  verdict  of  not  guilty,  ac- 
quitting the  party  of  the  crime  charged,  has  in 
Finality  of  a  ver-  practicB  always  been  held  to  be  final,  and  that 

dictfordefeudant.  ^^^    ^^^^^^  ^^^^^  ^^^  ^^^  ^^.^^  ^^^^^   ^  VCrdict    and 

subject  the  party  to  a  new  trial.  Such  action 
has,  however,  been  founded  upon  that  provision 
of  Article  V  of  the  amendments,  which  declares 
that  no  person  shall  "  be  subject,  for  the  same 
offence,  to  be  twice  put  in  jeopardy  of  life  or 
limb,"  it  having  been  held  that  on  a  verdict  of 
•  acquittal,  however  erroneous,  the  party  has  been 
put  in  jeopardy  within  the  meaning  of  that 
clause  of  the  Constitution.     It  is.  however,  the 


RIGHT    OF    TRIAL    BY    JURY.  501 

doctrine  of  the  present  day,  established  by  numer-  lecture  x. 
ous  authorities,  that  in  a  trial  for  a  crime  af)i;ain.st  ''"'  i"  ^t'eu.  s. 

'  o  courts  tlic  jury 

the  United  States,  the  jury  are  legally  bound   in  must  accept  the 
law  and  in  conscience  to  be  controlled  by  the  ^.^urt. 
law  which  may  be  applicable  to  such  a  case  as 
laid  down  by  the  court  before  whom  the  issue  is 
tried. ^ 

The  exception  of  cases  of  impeachment  from  impeachment, 
those  which  must  be  tried  by  a  jury  demands 
but  a  moment's  attention.  Other  clauses  of  the 
Constitution  provide  that  all  ofhcers  of  the 
Government,  from  the  President  down,  may  be 
removed  from  ofhce  by  impeachment,  for  treason, 
for  felony,  and  other  high  crimes  and  misde- 
meanors. They  provide  that  this  impeachment 
shall  be  instituted  by  charges  preferred  by  the 
House  of  Representatives,  and  that  the  issues 
shall  be  tried  by  the  Senate  of  the  United  States; 
that  it  shall  require  two-thirds  of  the  senators 
present  to  authorize  a  verdict  of  guilty,  and 
that  the  punishment  shall  only  extend  to  removal 
from  office  and  a  disqualification  for  the  future 
to  hold  any  office  of  honor  or  profit  under  the 
Government  of  the  United  States.  This  does 
not  preclude  a  trial  in  the  ordinary  courts  for 
any  of  the  crimes  which  may  be  charged  in  the 
articles  of  impeachment. 

This  section  of  the  Third  Article  of  the  Con- 
stitution then  goes  on  to  declare  that  the  trial 
of  all  crimes,  with  the  exception  of  cases  of  im- 


1  United  States  v.  Morris,  1  Curtis,  23 ;   United  States  v.  Shive, 
1  Baldwin,  510 ;   United  States  v.  Battiste,  2  Sumner,  240. 


502 


LECTUKES    ON    CONSTITUTIONAL    LAW. 


Lecture  X. 
Impeachment. 


Place  of  trial. 


peachment,  which  we  have  above  considered, 
''  shall  be  by  jury ;  and  such  trial  shall  be  held 
in  the  State  where  the  said  crimes  shall  have 
been  committed;  but  when  not  committed  within 
any  State,  the  trial  shall  be  at  such  place,  or 
places,  as  the  Congress  may  by  law  have 
directed." 

We  have  here,  in  this  declaration,  that  the 
trial  shall  be  held  in  the  State  where  the  crime 
shall  have  been  committed,  another  evidence  of 
the  disposition  of  the  Convention  to  adhere  to 
what  they  supposed  to  be  the  safeguards  of  the 
common  law.  It  was  a  part  of  the  common  law 
that  every  man  charged  with  a  crime  should  be 
tried  by  a  jury  of  the  vicinage,  which  vicinage 
was  held  to  be  the  local  jurisdiction  of  the  hun- 
dred, or  shire,  or  by  whatever  name  the  tribunal 
was  called,  which  could  try  the  oifence.  And 
though  it  has  long  since  been  discovered  that 
the  knowledg-e  which  the  neig;hbors  where  the 
offence  was  committed  might  have  of  the  crime 
itself,  and  of  the  character  of  the  party  charged, 
and  the  feeling  which  they  might  entertain  on 
the  subject,  are  in  reality  to  a  large  extent  dis- 
qualifications for  the  exercise  of  the  functions  of 
a  juror,  yet  it  is  an  undoubted  fact  that  the  prin- 
ciple of  the  trial  by  a  jury  of  the  vicinage  was 
founded  on  these  considerations.  This  policy  of 
the  common  law,  and  the  feeling  that  no  man 
charged  with  a  crime  against  the  Government  of 
the  United  States  should  be  carried  away  from 
the  State  where  the  crime  was  committed,  and 
tried  in  some  other  State,  even  though  it  was  in 


RIGHT    OF    TRIAL    BY    JURY.  oO"5 

a  court  of  the  United  States,  lay  at  the  founda-  lkcture  x. 
tion  of  this  provision  of  the  Constitution.  The  ^''-'^e  of  trial. 
mention  of  crimes  "  not  committed  within  any 
State "  had  reference  to  those  committed  upon 
the  high  seas,  in  the  Territories  of  the  United 
States  and  in  the  forts,  arsenals,  and  other 
places,  the  jurisdiction  in  regard  to  which  has 
been  ceded  to  the  Federal  Government.  In  this 
class  of  cases  Congress  may  prescribe  the  place 
where  the  trial  shall  be  had. 

The  Fifth  Article  of  the  Amendments,  which  An  infamous 
declares  that  "  No  person  shall  be  held  to  answer  «"•»«;-*'";■•;•'« 

••■  nieanuiif  of  the 

for  a  capital,  or  otherwise  infamous,  crime,  unless  Fifth  Amemi- 
on  a  presentment  or  mdictment  of  a  grand  jury," 
is  one  which  has  recently  attracted  the  con- 
sideration of  the  courts.  It  has  become  quite 
common  for  the  prosecuting  officers  of  the  Gov- 
ernment to  file  informations  against  parties  for 
offences  against  the  United  States,  and  to  pro- 
ceed to  a  trial  on  the  charges  presented  in  those 
informations  without  any  action  by  a  grand 
jury  thereon.  The  question  then  presented  is 
whether  the  charges  thus  preferred  constitute 
infamous  crimes.  There  is  no  difficulty  in  hold- 
ing that  all  crimes  for  which  the  punishment  is 
death  are  infamous  crimes  within  the  meaning 
of  this  clause  of  the  Constitution,  and  no  attempt 
has  been  made  in  the  Federal  courts  to  prose- 
cute a  person  for  any  such  offence  in  any  other 
way  than  by  an  indictment  by  a  grand  jury. 
But  a  very  large  class  of  offences  against  the 
laws  of  the  United  States  have  recently  been 
prosecuted    on    information,    where    the    party 


504  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  X.        charged  luis  taken  the  ground  that  the  offence 
An  infaiiioiis        charocd    was    an    infamous    crime    within    the 

orime  within  the  o 

meaiiin-of  tiie  meaning  uf  this  chiuse  of  the  Constitution,  and 
m'eut.  "*'"'  '  could  Only  be  tried  under  an  indictment  or  pre- 
sentment of  a  grand  jury.  There  has  been  great 
difficulty  in  deciding  what  was  meant  a  hundred 
years  ago  by  the  phrase  "infamous  crime," 
which  is  used  in  this  constitutional  amendment. 
That  difficulty  is  not  diminished  by  the  fact  of 
the  obscurity  of  the  language  itself  as  con- 
strued by  what  is  known  of  the  laws  and 
usages  of  our  ancestors  at  that  time,  in  con- 
nection with  the  fact  that  both  State  and  Fed- 
eral legislation  in  regard  to  crimes  may  have 
made  that  infamous  since  which  would  not  have 
been  so  considered  then.  While  there  are 
several  decisions  reported  from  the  Circuit 
Courts  of  the  United  States  on  this  subject,  the 
question  never  came  directly  before  the  Supreme 
Court  until  recently.^ 

The  opinion  of  the  court  in  Wilsons  Case 
shows  the  difficulty  of  arriving  at  any  satisfac- 
tory and  exclusive  definition  of  the  phrase  "  in- 
famous crimes;"  but  after  an  examination  of  all 
the  sources  of  light  upon  that  subject  the  court 
held  that  "  for  the  reasons  above  stated,  having 
regard  to  the  object  and  the  terms  of  the  first 
provision  of  the  Fifth  Amendment,  as  well  as  to 
the  history  of  its  proposal  and  adoption,  and  to 
the  early  understanding  and  practice   under  it, 


1  Ex  parte  Wilson,  114  U.  S.  417  ;   United  States  v.  Petit,  114 
U.  S.  429. 


EIGHT    OF    TRIAL    BY    JURY.  505 

this  court  is  of  opinion  that  the   competency  of  lecture  x. 
the  defendant,  if  convicted,  to  be  a  witness  in  '^'.'  "'^'*'"""'' 

'  '  crime  witliiii  the 

another  case  is  not  the  true   test ;  and  that  no  mt^aning  of  the 
person  can  be  held  to  answer,  without  present-  ment. 
nient  or  indictment  by  a    grand   jury,  for  any 
crime  for  which  an  infamous  i)unishui8nt  may 
be  imposed  by  the  court. 

"  The  question  is  whether  the  crime  is  one  for 
which  the  statutes  authorize  the  court  to  award 
an  infamous  punishment,  not  whether  the  pun- 
ishment ultimately  awarded  is  an  infamous  one. 
When  the  accused  is  in  danger  of  being  subjected 
to  an  infamous  punishment  if  convicted,  he  has 
the  right  to  insist  that  he  shall  not  be  put  upon 
his  trial,  except  on  the  accusation  of  a  grand 
jury. 

The  court  also  said  that  "  deciding  nothing 
beyond  what  is  required  by  the  facts  of  the  case 
before  us,  our  judgment  is  that  a  crime,  punish- 
able by  imprisonment  for  a  term  of  years  at 
hard  labor,  is  an  infamous  crime,  within  the 
meaning  of  the  Fifth  Amendment  of  the  Consti- 
tution."^ These  views  are  adopted  at  the  same 
time  and  governed  the  decision  of  the  case  of  the 
United  States  v.  Petit ;  and  in  Mackin  v.  United 
States,  117  U.  S.  348,  it  is  held  that  all  crimes 
punishable  by  imprisonment  in  a  State  prison 
or  penitentiary  are  infamous.  Of  course  these 
cases  decide  no  more  than  what  was  before  the 
court,  and  many  other  crimes  may  be  found  to 
be  infamous  than  those  which  are  punishable  by 

1  Ex  parte  Wilson,  114  U.  S.  417,  426.  2  ib.  409. 


506  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  X.  hard  labor  in  the  penitentiary.  But  the  princi- 
crime  within  the  P^^^  ^^^^  (lovvn  m  that  opmion  may  serve  in  a 
meaning  of  the     general  Way  as  a  guide  in  the  decision  of  future 

Fifth  Amend-  ^       .      ^       .    .  ,  ,  ,    . 

nient,  cases.     buch  decisions  must,  however,  depend  in 

each  case  upon  the  facts  peculiar  to  it. 
Offences  by  per-        There  is  an  exception  in  regard  to  the  neces- 

sons  in  the  land         •,  i-   o      t  j.  x  "J'i.  i.    ^ 

or  naval  forces  or  sity  of  finding  a  presentment  or  indictment  by 
militia  in  actual    a  grand  jury  in  crimes  against  the  United  States 

service. 

of  those  "  arising  in  the  land  or  naval  forces,  or 
in  the  militia,  when  in  actual  service,  in  time  of 
war  or  public  danger."  The  reason  for  this 
was  that  soldiers  of  the  regular  forces  of  the 
United  States,  or  of  the  militia  when  called  into 
the  service  of  the  General  Government,  could 
not  with  convenience  be  tried  by  a  jury.  The 
necessity  for  strict  discipline  and  subordination 
in  the  military  service  required  that  there  should 
be  prompt  and  speedy  action  in  regard  to  all 
offences  committed  therein.  From  time  imme- 
morial our  ancestors  had  subjected  persons  so 
engaged  to  trial  by  military  courts  of  various 
kinds,  and  it  was  supposed  hj  the  framers  of  the 
Constitution  that  these  courts,  proceeding  by 
their  own  methods,  which  were  well  understood, 
and  inflicting  punishments  appropriate  to  the 
offences  committed,  would  answer  all  the  pur- 
poses of  securing  the  rights  of  the  persons 
charged  with  such  offences,  considering  also  the 
inconvenience  and  impossibility  of  convening 
grand  juries  and  petit  juries  from  men  in  civil 
life  to  try  military  offences,  or  any  others,  com- 
mitted by  officers  or  soldiers  of  the  army  of  the 
United    States.     These    considerations    it   was 


RIGHT    OF    TRIAL    BY    JURY.  507 

thought  justified  the  departure  from  the  general  lecture  x. 

I  Offences  by  per- 

sons in  the  land 

As  regards  offences  committed  by  persons  in  '"•  navai  forces  or 
the  militia  the  exception  was  limited  to  those  service. 
"  in  actual  service,  in  time  of  war,  or  public 
danger."  And  this  has  relation  to  Avhat  I  said 
to  you  the  other  evening  as  to  the  power  of  the 
President  under  the  second  section  of  the  Second 
Article  as  the  commander-in-chief  of  the  militia 
of  the  several  States,  when  called  into  the  actual 
service  of  the  United  States.  The  militia  is 
spoken  of  in  other  parts  of  the  Constitution, 
and  always  has  reference  to  a  body  of  citizens  of 
the  States,  organized  under  State  authority  into 
military  divisions,  subject  to  officers  appointed 
by  the  States,  and  which  may  be  called  into  the 
service  of  the  Federal  Government  on  special 
occasions  mentioned  in  the  Constitution.  There- 
fore, if  a  person  who  is  a  member  of  the  militia 
is  charged  with  a  crime  against  the  United 
States,  he  cannot  be  proceeded  against  without 
an  indictment  or  presentment  of  a  grand  jury 
unless  he  be  "  in  the  actual  service  of  the  United 
States  "  and  "  in  time  of  war  or  public  danger." 

Article  VI  of  the  Amendments  opens  with  a  a  public  and 
declaration  that  "  in  all  criminal  prosecutions  guaranteed. 
the  accused  shall  enjoy  the  right  to  a  speedy  and 
public  trial."  It  may  be  supposed  that  this 
right  thus  placed  in  the  foreground  of  one  of 
these  Articles  would  be  considered  a  right  of  the 
gravest  importance,  but  I  am  not  aware  of  any 
act  of  Congress  designed  to  secure  it  to  a  person 
so  accused.     In  the  absence  of  any  such  legisla- 


508 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  X. 
A  public  and 
speedy  trial 
guaranteed. 


tion  this  right  of  a  speedy  trial  as  guaranteed 
by  tliis  provision  must  depend  upon  the  control 
which  the  courts  exercise  over  their  prosecuting 
officers,  by  requiring  them  to  proceed  within  a 
reasonable  time  to  the  trial  when  the  accused  so 
desires,  but  it  is  to  be  feared  that  the  spirit  of 
this  constitutional  provision  has  not  always  been 
enforced  in  favor  of  accused  persons. 

The  trial,  it  is  also  declared,  shall  be  ''public," 
which  was  a  wise  provision,  designed  to  prevent 
secret  trials  from  which  the  public  could  be  ex- 
cluded, where  the  jury  and  the  witnesses  alone 
would  be  present  with  the  officers  of  the  court, 
and  where  any  injustice  that  might  be  done  to 
the  prisoner  could  be  covered  up  and  kept  from 
public  notice. 
An  impartial  jury.  The  provisiou  that  this  trial  shall  be  "by  an 
impartial  jury  of  the  State  and  district  wherein 
the  crime  shall  have  been  committed,"  we  have 
already  considered,  to  which  is  added  that  this 
"  district  shall  have  been  previously  ascertained 
by  law."  The  object  of  this  was  to  prevent  the 
party  from  being  taken  out  of  the  district  or 
State  for  trial,  and  also  to  prevent  such  a  change 
of  the  boundaries  of  a  district  by  an  act  of  Con- 
gress after  the  commission  of  the  offence  as 
might  subject  the  prisoner  to  a  trial  in  a  part  of 
the  country  less  favorable  to  him  than  that  in 
which  the  offence  was  committed. 

The  remaining  provisions  of  this  Article  are 
among  the  most  important  rights  which  are 
guaranteed  by  the  Constitution  to  a  person 
charged  with  offences  against  the  United  States. 


The  rights  of  the 
accused. 


RIGHT    OF    TRIAL    I3Y   JURY.  509 


He  shall  be  "  informed  of  the  nature  and  cause  lecture  x. 

The  rifjli 
accused. 


of  the   accusation,"  SO  that  he  may  know  pre- ^''^'"'*'''"^*^^***® 


cisely  what  is  charged  against  liim.  If  the  of- 
fence be  prosecuted  by  indictment  or  presentment 
the  instrument  must  contain  a  clear  statement 
of  the  nature  and  character  of  the  accusation 
and  of  the  offence  for  which  the  prisoner  is  to  be 
tried.  He  can  be  tried  for  no  other  offence  than 
that  thus  charged.  He  has  a  right  to  be  spe- 
cifically informed  of  the  exact  nature  of  the  vio- 
lation of  law  for  which  he  is  to  undergo  a  trial. 
The  importance  of  this  cannot  well  be  questioned, 
and  the  books  of  reports  are  filled  with  decisions 
of  what  is  necessary  to  be  stated  in  such  indict- 
ment and  presentment,  and  in  regard  to  the 
particularity  and  precision  with  which  the  charges 
shall  be  set  out.  A  discussion,  however,  of  the 
rules  which  have  been  established  on  this  subject, 
would  occupy  more  time  than  the  present  occa- 
sion justifies. 

The  accused  is  also  "  to  be  confronted  with 
the  witnesses  against  him  ;  "  that  is  to  say,  that 
no  evidence  shall  be  brought  as-ainst  him  on  his 
trial  made  up  of  depositions  or  affidavits  or  hear- 
say statements,  but  that  the  witnesses  by  whom 
his  guilt  is  to  be  established  shall  be  brought 
face  to  face  with  him  in  order  that  he  may  see 
them  and  hear  them,  witness  their  manner  of 
testifying,  and  so  that  either  by  himself  or  his 
counsel  they  may  be  subjected  to  such  cross- 
examination  as  he  may  consider  of  benefit  to  his 
interests. 

He  is  also  "  to  have  a  compulsory  process  for 


510  LECTURES    ON    CONSTITUTIONAL    LAW. 

LKCTtTRE  X.        obtaining  witnesses  in  his  favor,"  that  is  to  say, 

I  he  rights  of  the  ^j^^j^f    however  poor  he  may  be,  or  however  un- 
accused. '  J-  . 

able  to  pay  the  expenses  of  such  witnesses  as  he 

may  deem  necessary,  the  court  shall  issue  its 
process  to  compel  their  attendance  for  examina- 
tion upon  the  trial. 

And  lastly,  he  is  entitled  "  to  have  the  assist- 
ance of  counsel  for  his  defence."  Whether 
this  provision  requires  the  Government  to  pro- 
vide him  with  counsel,  it  is  not  necessary  for  us 
now  to  inquire.  The  occasion  for  that  provision 
in  the  Constitution  undoubtedly  was  that  up  to 
a  period  long  subsequent  to  its  adoption  a  pris- 
oner on  trial  in  an  English  court  accused  of  an 
offence  against  the  Government  was  not  entitled 
to  the  aid  of  counsel  in  the  progress  of  his  trial, 
except  in  a  very  limited  degree,  even  when  he 
was  ready  to  pay  for  the  same  and  such 'Counsel 
was  ready  to  act.  This  disgrace  upon  the  Eng- 
lish system  of  criminal  jurisprudence  was  not 
removed  until  1836. 


NOTES  UPON  LECTURE  X. 


1.    Definition  of  ^^  Trial  hy  Jury.^^ 

The  references  to  the  reported  cases  upon  the  lecture  x. 
subject  of  trial  by  jury  come  down  to  volume  117  ^^^^J  *^  *"*^  ^^ 
of  the  United  States  Reports,  leaving  but  little 
to  be  added.  Before  doing  this  I  venture  to 
quote,  from  a  standard  authority,  a  definition  of 
the  English  and  American  jury,  as  distinguished 
from  all  other  judicial  modes  for  investigating 
disputed  facts.  The  Encyclopaedia  Britannica,^ 
in  its  article  "  Jury,"  says  :  — 

"  The  essential  features  of  trial  by  jury,  as 
practised  in  England  and  countries  influenced  by 
English  ideas,  are  the  following  :  The  jury  are 
a  body  of  laymen,  selected  by  lot  to  ascertain, 
under  the  guidance  of  a  judge,  the  truth  in 
questions  of  fact  arising  either  in  a  civil  litiga- 
tion or  in  a  criminal  process.  They  are  gener- 
ally twelve  in  number,  and  their  verdict,  as  a 
general  rule,  must  be  unanimous.  Their  prov- 
ince is  strictly  limited  to  questions  of  fact,  and 
within  that  province  they  are  still  further  re- 
stricted to  the  exclusive  consideration  of  matters 
that  have  been  proved  by  evidence  in  the  course 


I  Encyclopaedia  Britannica  (9th  ed.),  vol.  13,  p.  783,  tit.  Jury. 

511 


H2 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  X. 
Wliat  is  trial  by 
jury? 


of  the  trial.  They  must  submit  to  the  direction 
of  the  judge  as  to  any  rule  or  principle  of  law 
that  may  be  applicable  to  the  case ;  and  even  in 
deliberating  on  the  facts,  they  receive,  although 
they  need  not  be  bound  by,  the  directions  of  the 
judge  as  to  the  weight,  value,  and  materiality  of 
the  evidence  submitted  to  them.  Further,  ac- 
cording to  the  general  practice,  they  are  selected 
from  the  inhabitants  of  the  locality  within  which 
the  cause  of  action  has  arisen,  or  the  crime  has 
been  committed,  so  that  they  bring  to  the  dis- 
charge of  their  duties  a  certain  amount  of  inde- 
pendent local  knowledge,  an  element  in  the 
institution  which  is  by  no  means  to  be  ignored. 
.  .  .  What  is  the  origin  of  this  very  remark- 
able and  characteristic  system  ?  That  is  a  ques- 
tion which  has  engaged  the  attention  of  many 
learned  men.  The  fullest  discussion  of  the  sub- 
ject is  contained  in  Forsyth's  '  Trial  by  Jury,' 
published  in  1852."  ^ 


2.    Origin  of  the  Jury  System. 

The  distinguish-  It  may  uot  be  inappropriate  to  refer  very 
lystlm!'""''''^"'' briefly  to  Mr.  Forsyth's  excellent  work,  which 
deserves  all  that  the  writer  in  the  Encyclopnedia 
says,  to  see  how  and  where  the  jury  originated, 
and  how  far  it  has  been  adopted  into  other 
systems  of  law. 

The  distinctive  characteristic  of  the  system  is 
this :  That  the  jury  consists  of  a  body  of  men 

1  History  of  Trial  by  Jury,  by  William  Forsyth,  M.A.    London, 
1852. 


NOTES    UPON    LECTURE    X.  513 

taken  from  the  community  at  large,  summoned  lecture  x. 
to  find  the  truth  of  disputed  facts,  who  are  quite  t'"'  ^I'f  "g"';';- 

i  '  A  111}^  features  of  the 

distinct  from  the  judges  or  court.  They  are  to  system. 
decide  upon  the  effect  of  the  evidence,  and  thus 
assist  the  court  to  pronounce  a  right  judgment ; 
but  they  have  nothing  to  do  with  the  sentence  or 
judgment  which  follows  the  verdict.  They  are 
not,  like  the  judges,  members  of  a  class,  charged 
with  the  duty  of  judicial  inquiry ;  they  are  taken 
from  varied  pursuits  to  make  a  special  inquiry, 
and  return  to  their  ordinary  avocations  wdien 
the  labor  is  over.  This  distinguishes  the  system  As  distinguished 
from  the  Geschwornen-Gerichte  of  Germany,  J^^";;"''''^'- 
from  the  Scandinavian  courts,  Norw^egian,  Swed- 
ish, and  Danish,  and  from  the  Anglo-Saxon 
courts,  to  each  of  which  speculation  has  traced 
it.  Even  identity  in  details  does  not  necessarily 
imply  identity  in  origin,  when  history  shows  it 
to  be  most  improbable  —  as  Mr.  Forsyth  shows 
in  a  note  in  which  he  says  :  "  The  most  remark- 
able approximation  to  our  own  institution  seems 
to  have  existed  at  an  early  period  in  Russia  for 
the  trial  of  criminal  cases.  In  the  French  trans- 
lation of  M.  Karamsin's  Histoire  de  Russie,  we 
find  the  following :  Le  jjIus  ancieii  code  des  lois 
russe  i^orte  que  douze  citoyens  assermentes  discu- 
tent  suivant  leur  conscience  les  charges  qui  pesent 
sur  un  accuse,  et  laissent  aux  juges  le  droit  de  de- 
terminer la  jMineJ'  ^ 

Courts  existed  in  England  in  the  Anglo-Saxon  How  the  system- 
period,  presided  over  by  a  reeve,  or  judge,  wdio  ^^^  "^  *"  '""" 

1  Forsyth  on  Trial  by  Jury,  37  n. 


614 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Li<x:tukk  X. 
How  the  system 
grew  up  ill  Eng- 
land. 


had  no  voice  in  the  decision,  and  the  number  of 
persons  who  sat  as  judges  (or  jurors)  was  fre- 
quently twelve,  or  some  multiple  of  that  num- 
ber ;  but  it  was  not  until  the  establishment  of 
the  assize  in  the  time  of  Henry  II,  after  these 
Saxon  elements  had  been  continued  in  force 
under  the  Anglo-Normans,  that  the  institution 
of  the  jury  was  produced.  There  the  jury  is 
first  found  in  its  distinct  form,  although  the  ele- 
ments of  which  it  was  composed  were  familiar 
to  the  jurisprudence  of  the  time. 

Before  that  time,  and  in  the  early  Norman 
reigns,  it  was  the  practice  to  decide  controversies 
by  appealing  to  the  knowledge  of  the  neighbor- 
hood where  the  parties  resided  and  the  land 
lay.  There  w^as  no  difference  in  principle  be- 
tAveen  such  inquests  and  the  recognitions  by  the 
knights  of  assize. 

Passing  l)y  the  constitutions  of  Clarendon 
(1164),  the  statute  of  Northampton  (1176),  and 
Magna  Charta  (1215),  we  find  in  a  note  in 
Forsyth  an  account  of  the  earliest  record  extant 
of  a  trial  by  a  regularly  constituted  jurata, 
respecting  the  right  to  the  custody  of  the  Hospi- 
tal of  St.  Julian  at  Southampton.  Twenty-four 
jurors  were  summoned ;  twelve  acted,  and  gave 
their  verdict  for  the  king  "  m  cujus  rei  testi- 
monium,'' they  affixed  their  seals.^ 

During  all  this  time  the  jury  were  both  wit- 
nesses and  jurors,  rendering  their  verdicts  on 
their  personal  knowledge  respecting  the  matter 


1  Forsyth  on  Trial  by  Jury,  149  n. 


NOTES    UPON    LECTURE    X.  515 

in   dispute,    without    hearing    witnesses.      The  lecture  x. 
chcano-e  to  tlie  present  mode  was  made  fj-raduallv-  "^^  ^''® .^y^*^"* 

o        _  A  o  J     ;;rew  up  in  Eiig- 

By  the  time  of  "  the  reign  of  Edward  III  trials  land, 
by  jury  in  criminal  cases  were  nearly,  if  not 
quite,  the  same  as  at  the  present  day.  .  .  . 
Although  the  qualification  of  previous  knowl- 
edge on  the  part  of  jurors  empanelled  to  try  a 
a  prisoner  had  long  fallen  into  desuetude,  the 
fiction  was  still  kept  up  by  requiring  them  to 
be  summoned  from  the  hundred  where  the  crime 
was  alleged  to  have  been  committed,  until  the 
passing  of  Stat.  6,  Geo.  IV,  c.  50,  by  which  the 
sheriff  is  now  obliged  to  return  for  the  trial  of 
any  issue,  whether  civil  or  criminal,  twelve  good 
and  lawful  men  of  the  hody  of  his  count)/  quali- 
fied according  to  law." 

As  late  as  the  time  of  Queen  Elizabeth  it  was 
the  custom  in  civil  actions  for  the  successful 
party  to  entertain  the  jury  at  dinner.  "  The 
party  with  whom  they  have  given  their  sentence 
giveth  the  enquest  their  dinner  that  day  most 
commonly,  and  this  is  all  they  have  for  their 
labour,  notwithstanding  that  they  come,  some 
twenty,  some  thirty,  or  forty  miles  or  more,  to 
the  place  where  the}'  give  their  verdict ;  all  the 
rest  is  of  their  own  chuze."  ^ 

The  jury  system  was  brought  by  emigrants  How  the  system 
to  this  country,  to  Canada,  to  Australia,  to  South  ^^^^  *«"••« 

«^  '  '  '  country. 

Africa,  and  wherever  colonies  have  been  planted 
by  British  emigrants.  It  extended  to  Scotland  ; 
but  there,  the  Scottish  system  of  laAV,  derived 

1  Forsyth  on  Ti'ial  by  Jury,  242  n. 


51G 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  X. 
H<)w  the  system 
camo  to  this 
country. 


from  the  civil  law,  authorized  the  finding  in 
criminal  cases  of  a  verdict  of  "  not  proven  "  when 
the  jury  were  not  prepared  to  find  either 
"  guilty  "  or  "  not  guilty,"  like  the  "  non  liquet " 
in  the  Roman  law.^  The  jury  was  introduced 
into  France  in  1789  in  criminal  cases,  but  not 
in  civil  cases;  in  Belgium  in  1830;  in  Sardinia 
in  1850,  from  whence  it  has  extended  into  Italy, 
and  in  Germany.  De  Tocqueville  says  of  it, 
"  Le  jury  est,  avant  tout,  une  institution  politi- 
que. .  .  .  L'homme  qui  juge  au  criminel  est 
done  reellement  le  maitre  de  la  societe.  Or 
I'institution  du  jury  place  le  peuple  lui-meme, 
ou  du  moins  une  classe  de  citoyens,  sur  le  siege 
du  juge.  L'institution  du  jury  met  done  reelle- 
ment la  direction  de  la  societe  dans  les  mains 
du  peuple,  ou  de  cette  classe."  "  Le  jury  qui 
semble  diminuer  les  droits  de  la  magistrature, 
fond  reellement  son  empire :  et  il  n'y  a  pas  de 
pays  oil  les  juges  soient  aussi  puissans  que  ceux 
ou  le  peuple  entre  en  partage  de  leurs  privi- 
leges. 


1  "  There  [in  Rome]  we  find  a  presiding  judge,  who  was  either 
the  prcetor,  or  a,jridex  qitestionis  specially  appointed  by  him,  and  a 
body  of  jiidires  taken  from  a  particular  class,  .  .  .  whose  duty  it 
was  to  determine  the  fact  of  the  guilt  or  innocence  of  the  accused. 
At  the  close  of  the  evidence  they  were  said  to  be  missi  in  consilium 
by  the  judge,  that  is,  told  'to  consider  their  verdict,'  and  to  each 
were  given  three  tablets  marked  respectively  with  the  letters  A. 
for  Ahsolvo,  C.  for  Condemno,  and  N.  L.  for  Non  Liquet,  one  of 
which  he  threw  into  an  urn,  and  the  result  of  the  trial  was  deter- 
mined by  the  majority  of  the  letters  that  appeared."  Forsyth, 
pp.  12,  13. 


NOTES    UPON    LECTURE    X.  517 

3.    Decisions  on  these  Clauses  in  the  Constitution. 

The   Constitution,   as   has  been   seen,   makes  lecture  ix. 
three  provisions  in  regard  to  trial  by  jury. 

The  first  is  in  Article  111,  Section  2,  Para- 
graph 3,  and  relates  only  to  the  trial  of  crimes. 

The  second  is  Article  VI  of  the  Amendments, 
and  also  relates  only  to  criminal  prosecutions. 

The  third  is  in  Article  Vll  of  the  Amend- 
ments, and  relates  to  suits  at  common  law. 

A.    Generally. 

At  a  trial  by  jury  in  a  court  of  the  United  Generally. 
States,  the  judge  may  express  his  opinion  upon 
the  facts.  The  expression  of  such  an  opinion, 
when  no  rule  of  law  is  incorrectly  stated,  and 
all  matters  of  fact  are  ultimately  submitted  to 
the  determination  of  a  jury,  cannot  be  reviewed 
by  writ  of  error.  In  this  respect  the  powers  of 
the  courts  of  the  United  States  are  not  con- 
trolled by  State  statutes  forbidding  judges  to 
express  any  opinion  on  the  facts. ^ 

B.    In  Criminal  Cases. 

The  provision  in  the  Fifth  Amendment,  that  criminal  cases. 
"  no  person  shall  be  held  to  answer  for  a  capital 
or  otherwise  infamous  crime,  unless  on  a  pre- 
sentment or  an  indictment  of  a  grand  jury,"  is 
jurisdictional,  and  no  court  of  the  United  States 
has  authority  to  try  a  prisoner  without  indict-  * 

ment  or  presentment  in  such  cases .^ 

1  Vick.ihurg  i&  ^ferid^an  Railroad  v.  Putnam,  118  U.  S.  545.  See 
also  *S'^  Lends,  Iron  Mountain,  &  Southern  Raihcay  v.  Vickers,  122 
U.  S.  3G0  ;  and  Williams  v.  Conger,  125  U.  S.  397. 

2  Ex  parte  Bain,  121  U.  S.  1. 


518  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  X.  In  some  of  the  States  a  juror  who  has  formed 

Criminal  cases.  ^^  opmioii  of  the  case  froHi  reading  the  news- 
paper is  not  competent  to  sit  upon  the  jury 
which  tries  a  person  accused  of  committing  a 
crime ;  and  by  his  doing  so  it  would  cease  to 
be  an  impartial  jury.  But  in  Illinois  he  is  not 
thereby  disqualified  if  he  can  swear  that  he 
believes  that  he  can  fairly  and  impartially 
render  a  verdict  on  the  evidence.  The  statute 
which  authorizes  him  in  such  case  to  sit  upon 
the  jury  is  held  not  to  deprive  the  accused  of 
his  right  to  trial  by  an  impartial  jury.^ 

The  provision  in  Article  III  of  the  Constitu- 
tion that  "  the  trial  of  all  crimes,  except  in 
cases  of  impeachment,  shall  be  by  jury,"  is  to 
be  construed  in  the  light  of  the  principles  which, 
at  common  law,  determined  whether  or  not  a 
person  accused  of  crime  was  entitled  to  be  tried 
by  a  jury;  and,  thus  construed,  it  embraces  not 
only  felonies  punishable  by  confinement  in  the 
penitentiary,  but  also  some  classes  of  misde- 
meanors the  punishment  of  which  may  involve 
the  deprivation  of  the  liberty  of  the  citizen.^ 

The  provisions  in  the  Constitution  relating 
to  trial  by  jury  are  in  force  in  the  District  of 
Columbia.^ 

A  person  accused  of  a  conspiracy  to  prevent 
another  person  from  pursuing  a  lawful  avoca- 
tion, and  by  intimidation  and  molestation  to 
reduce  him  to  beggary  and  want,  is  entitled, 


1  Spies  V.  Illinoi»,  123  U.  S.  13L 

2  Callan  v.  Wilson,  127  U.  S.  640.  «  lb. 


NOTES    UPON    LECTURE    X.  519 

under  the  provisions  of  the  Constitution,  to  a  lectuke  x. 

.•11        •  1  Criuiiual  cases. 

trial  by  jury/ 

A  Circuit  Court  of  the  United  States,  upon 
the  commission  of  a  contempt  in  its  presence, 
may,  upon  its  own  knowledge  of  the  facts, 
without  further  proof,  without  issue  or  trial  by 
jury,  immediately  proceed  to  determine  whether 
the  facts  justify  punishment,  and  to  inflict  such 
punishment  therefor  as  the  law  allows.^ 

A  statute  of  Utah  provided  that  every  person  . 
guilty  of  murder  in  the  first  degree  shall  suffer 
death,  or,  upon  the  recommendation  of  the  jury, 
be  imprisoned  at  hard  labor  in  the  penitentiary 
for  life,  at  the  discretion  of  the  court.  It 
was  held  that  it  was  the  duty  of  the  court, 
when  a  person  was  on  trial,  charged  with  the 
commission  of  murder  in  the  first  degree,  to 
inform  the  jury  of  their  right,  under  the  statute, 
to  recommend  imprisonment  for  life  at  hard 
labor,  in  the  place  of  death,  and  that  failure  to 
do  so  was  error.^ 

In  a  very  recent  case  these  provisions  relating 
to  the  place  of  trial  came  before  the  Supreme 
Court.  A  murder  was  committed  in  1888  in 
the  parallelogram  of  land  south  of  Kansas  and 
Colorado  known  as  "  No  Man's  Land."  This 
tract  was  not  at  that  time  included  within  any 
organized  judicial  district  of  the  United  States, 
but  in  March,  1889,  a  court  w^as  established 
over  it,  with  jurisdiction  over  offences  previously 

1  Callan  v.  Wilson,  127  U.  S.  540. 

2  £x  parte  Terry,  128  U.  S.  289. 
»  Calton  V.  Utah,  130  U.  S.  83. 


620  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  X.  Committed.  The  persons  alleged  to  heave  com- 
Cnmmai  cases,  j^^j^^gj  ^\^q  murder  Were  tried  and  convicted. 
Their  case  being  brought  to  the  SujDreme  Court 
for  review,  it  was  there  held  that  the  statute 
was  intended  to  act  retroactively  ;  that  such  a 
provision  was  not  unconstitutional ;  that  the 
provision  in  Article  III  of  the  Constitution  re- 
specting the  trial  of  crimes  "  not  committed  in 
any  State "  imposed  no  restriction  as  to  the 
place  of  trial,  except  that  it  could  not  take  place 
until  Congress  should  designate  the  place,  and 
might  take  place  at  any  locality  which  should 
have  been  designated  by  Congress  previous  to 
the  trial ;  that  the  provision  in  the  Sixth 
Amendment  respecting  the  place  of  trial  had 
reference  only  to  offences  against  the  United 
States  committed  within  a  State ;  and  that  the 
act  fixing  the  place  of  trial  was  in  no  sense  an 
ex  jjost  facto  law.^ 

If  the  trial  court  makes  the  decision  of  a 
motion  for  a  new  trial  depend  upon  a  remission 
of  the  larger  part  of  the  verdict,  this  is  not  a 
re-examination  by  the  court  of  facts  tried  by  the 
jury  in  a  mode  not  known  at  the  common  law, 
and  is  no  violation  of  the  Seventh  Article  of 
Amendment  to  the  Constitution.'^ 

C.    In  Civil  Cases. 

Civil  cases.  In  regard   to   the    right   to  a    jury   in    civil 

cases,    it   is   a    right    which    may   undoubtedly 


1  Cook  V.  United  States,  138  U.  S.  157. 

2  Arkansas  Valley  Land  &  Cattle  Co.  v.  Mann,  130  U.  S.  69. 


NOTES    UPON    LECTURE    X.  521 

be   waived,   and   which    is    constantly    waived  le«  turb  x. 
in  practice.     But,  unless  waived,  it  cannot  be  ^"*'  *^*^^' 
taken  away. 

The  restriction  is  to  be  found  in  the  Seventh 
Amendment,  and  it  relates  to  "  suits  at  common 
law,  where  the  value  in  controversy  shall  exceed 
twenty  dollars."  It  was  to  that  extent  a  re- 
striction upon  the  power  of  Congress,  but  did 
not  limit  the  power  of  the  State  governments  in 
respect  to  their  own  citizens.^ 

Several  of  the  States  have  exercised  their 
reserved  right  to  curtail  the  right  of  trial  by 
jury  in  civil  cases. 

The  Constitution,  in  the  second  section  of 
Article  III,  provides  that  the  judicial  power  of 
the  Federal  Government  shall  extend  to  all 
cases  in  law  and  equity,  arising  under  the  Con- 
stitution, the  laws  of  the  United  States,  etc. 
The  difference  between  law  and  equity  was  well 
settled  when  the  Constitution  was  adopted,  and 
the  provisions  of  the  Seventh  Amendment  relat- 
ing to  suits  at  the  common  law,  had  no  applica- 
tion to  suits  in  equity  in  the  courts  of  the 
United  States. 

In  process  of  time,  as  new  States  have  been 
organized,  and  new  legislation  had  under  new 
influences,  the  terms  of  pleading  have  been  modi- 
fied and  changed,  and  the  dividing  line  between 
equity  and  law,  and  the  corresponding  remedies, 
have   been   likewise   changed    and   modified    in 


1  United  States  v.  Cruikshank,  92  U.  S.  542,  552,  and  cases 
cited  on  page  552. 


522  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  X.        many    States.      The    forms    of    proceedings   in 
ivii  cases.  State  courts  having  been  adopted  in  the  courts 

of  the  United  States,  held  within  the  States 
respectively,  these  changes  in  equity  jurisdiction 
naturally  found  an  expression  and  formed  the 
subject  of  litigation  in  cases  pending  in  the 
Federal  courts.  In  an  early  case  Chief  Justice 
Taney  said  "  the  adoption  of  the  State  practice 
must  not  be  understood  as  confounding  the  prin- 
ciples of  law  and  equity,  nor  as  authorizing 
legal  and  equitable  claims  to  be  blended  together 
in  one  suit."  ^  In  a  very  late  case  the  cases 
are  reviewed,  and  it  was  held  that  a  Federal 
court  could  not  take  jurisdiction  in  Mississippi 
of  a  bill  in  equity  to  subject  the  property  of  the 
defendants  to  the  payment  of  a  simple  contract 
debt  of  one  of  them,  in  advance  of  any  proceed- 
ings at  law,  either  to  establish  the  validity  and 
amount  of  the  debt,  or  to  enforce  its  collection, 
although  that  might  be  done  in  a  State  court 
under  the  provisions  of  the  code  of  that  State.^ 

^  Bennett  v.  Britterworth,  14  How.  669,  674.  See  also  Hipp  v. 
Bahur,  19  How.  271;  Lewis  v.  Cocks,  23  Wall.  466;  Killian  v. 
Ebbinyhans,  110  U.  S.  568;  Buzard  v.  Houston,  119  U.  S.  347; 
Thompson  v.  Railroad  Companies,  6  Wall.  134  ;  Hutchins  v.  King, 
1  Wall.  53  ;  Holland  v.  Challen,  110  U.  S.  15 ;  Whitehead  v.  Shut- 
tuck,  138  U.  S.  146. 

2  Scott  V.  Neely,  140  U.  S. 


XL 

IMPAIRMENT   OF  THE  OBLIGATION   OF 
CONTRACTS.^ 


Article  I,  Section  10.  No  State  shall  enter  Lectdbk  XI. 
into  any  Treaty,  Alliance,  or  Confederation  ;  grant 
Letters  of  Manjue  and  Reprisal ;  coin  Money  ;  emit 
Bills  of  Credit ;  make  any  Thing  but  gold  and  silver 
Coin  a  Tender  in  Payment  of  Debts  ;  pass  any  Bill  of 
Attainder,  ex  post  facto  Law,  or  Law  impairing  the 
Obligation  of  Contracts,  or  grant  any  Title  of  No- 
bility. 

The    topic  for  this  discourse  is  taken    from  Laws  impairing 
section  10,  Article  I,  of  the  Constitution  of  the '''\''^'^f ''^°  "' 

'  '  contracts. 

United  States,  which  reads  as  follows :  — 

"No  State  shall  enter  into  any  treaty,  alliance, 
or  confederation  ;  grant  letters  of  marque  and 
reprisal ;  coin  money  ;  emit  bills  of  credit ;  make 
anything  but  gold  and  silver  coin  a  tender  in 
payment  of  debts ;  pass  any  bill  of  attainder,  ex 
post  facto  law,  or  law  impairing  the  obligation 
of  contracts,  or  grant  any  title  of  nobility." 

Out  of  that  important  sentence  I  have  selected 
for  a  more  careful  consideration  the  words,  "  or 
law  impairing  the  obligation  of  contracts." 

^  This  Lecture  was  Lecture  IX  of  the  Lectures  delivered  before 
the  classes  of  the  University  Law  School. 

523 


524  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkcturk  XI.  The   first  Article  of  the  Constitution  begins 

tiTe^'obH'ation'of   ^^^^  provisions  conceming  the  organization  of 
couiracts.  the  two  houses  of  the  legislative  body,  the  Senate 

and  the  House  of  Representatives,  and  then  sec- 
tion eight  in  affirmative  language  confers  certain 
express  powers  upon  the  Congress  of  the  United 
States,  that  is  to  say,  upon  the  Federal  Govern- 
ment, or  the  General  Government,  of  the  Union, 
as  distinguished  from  the  States,  and  the  people 
of  the  States.  In  section  nine  certain  limitations 
are  laid  down  in  regard  to  the  power  of  the 
Federal  legislature.  Among  other  things  it  is 
provided  that  it  shall  not  pass  any  bill  of  at- 
tainder, or  any  ex  post  facto  law,  and  through  a 
number  of  negotiations  states  what  shall  not  be 
done  by  the  Congress  of  the  United  States,  or 
by  the  National  Government. 
This  limitation  is  In  scctiou  tcu,  abovc  quotcd,  limitations  are 
upon  t  e  tates.  jj^p^gg^j  upou  the  individual  States,  the  language 
being  that  ''no  State  "  shall  do  any  of  the  things 
which  are  here  prohibited. 
Bills  of  credit.  In  passing,  it  may  be  remarked  that  the  phrase 

"  emit  bills  of  credit  "  was  for  a  long  time  the 
subject  of  judicial  and  political  controversy.  It 
was  questioned  whether  it  did  not  prevent  any 
State  from  issuing  bonds,  or  chartering  banks  of 
issue,  but  the  better  opinion  seems  to  be,  (and  it 
was  so  decided  in  1830,  by  Chief  Justice  Mar- 
shall ^ )  that  to  "  emit  bills  of  credit "  meant 
to  issue  in  the  name  of  the  State  some  form  of 
certificates  of  indebtedness  which  were  "  intended 

1  Craig  v.  Tlie  State  of  Missouri,  4  Pet.  408,  432. 


IMPAIRMENT    OF    CONTRACTS.  525 

to  circulate   through  the  community,  for  its  or-  lecture  xi. 

di  •    1  Bills  of  credit, 

mary    purposes,  as   money,  which    paper  was 

redeemable  at  a  future  day,"  and  that  if  such 

was  not  the  purpose  their  issue  would  not  come 

within  this  clause. 

No  State  is  permitted  to  "  make  anything  but  Legal  tender, 
gold  and  silver  coin  a  tender  in  payment  of 
debts."  The  object  of  this  provision  was  to  cor- 
rect what  had  grown  to  be  an  enormous  evil  at 
that  time,  that  of  a  debased  paper  currency,  in 
connection  with  the  further  prohibitions  against 
any  State  passing  any  ex  post  facto  law,  or  law 
impairing  the  obligation  of  contracts,  in  order  to 
prevent  the  scaling  of  debts  or  the  authorization 
of  their  payment  in  a  depreciated  and  worthless 
paper.  This  was  thought  to  be  necessary  be- 
cause it  was  seen  that  statutes  of  the  States 
passed  for  that  purpose  would  constitute  one  of 
the  great  hindrances  to  the  collection  and  pay- 
ment of  honest  debts. 

In   approaching    this    subject    the    following  circulating 
quotation  from  Mr.  Bancroft's  '' History  of  the  r^^^"  ^'^^"  *^« 

^  "^  Constitution  was 

Constitution  of  the  United  States "  will  be  of  framed, 
service  in  getting  a  better  knowledge  of  the  con- 
dition of  the  times  when  that  instrument  was 
framed.  The  whole  work  is  the  most  valuable 
contribution  to  the  history  of  the  period  preced- 
ing the  time  when  it  was  adopted  and  subse- 
quent thereto,  that  has  yet  been  written.  The 
author,  speaking  of  the  events  which  went  be- 
fore the  formation  of  the  Constitution,  says  :  — 
"  The  thirteen  American  States  had  a  larger 
experience  of  the  baleful  consequences  of  paper 


526  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  XI.       TTioney  than  all  the  world  besides.     As  each  of 
Circulating  tlieiTi  had  a  les:islation  of  its  own,  the  laws  were 

ineaiuin  when  the  ^ 

Constitution  was  as  Variant  as  they  were  inconvenient  and  unjust. 
The  shilling  had  differing  rates  from  its  sterling 
value  to  an  eighth  of  a  dollar.  The  confusion 
in  computing  the  worth  of  the  currency  of  one 
State  in  that  of  another  was  hopelessly  increased 
by  the  laws  which  discriminated  between  differ- 
ent kinds  of  paper  issued  by  the  same  State ;  so 
that  a  volume  could  hardly  hold  the  tables  of 
the  reciprocal  rates  of  exchange.  Moreover, 
any  man  loaning  money  or  making  a  contract 
in  his  own  State  or  in  another,  was  liable  at  any 
time  to  loss  by  some  fitful  act  of  separate  legis- 
lation. The  necessity  of  providing  effectually 
for  the  security  of  private  rights  and  the  steady 
dispensation  of  justice,  more,  perhaps,  than  any- 
thing else,  brought  al)out  the  new  Constitution."  ^ 
History  of  this  One  of  the  earliest  of  the  Constitutions  pro- 

stkudon  ^  °°"  posed  for  the  confederated  States  contained  pro- 
visions for  some  of  the  items  mentioned ;  for 
instance,  as  to  coining  money,  emitting  bills  of 
credit,  and  passing  ex  j)ost  facto  laws.  That 
branch  of  the  instrument  had  been  passed  over 
and  committed  to  the  charo;e  of  the  committee 
on  revision  and  st3de.  For  the  purpose  of  pre- 
venting any  interference  with  contracts  the  Con- 
vention had  relied  very  largely  upon  the  clause 
proliibiting  the  passage  of  any  ex  j^ost  facto  law. 
The  original  draft  had  nothing  in  it  about  im- 
pairing the  obligation  of  contracts  when  it  was 

^  Bancroft's  Hist.  Const.,  vol.  1,  book  2,  c.  6 ;   author's  Last 
Revise,  vol.  6,  p.  1G7. 


IMrAIKMENT  OF  CONTKACTS.  ;)2  / 

.submitted  to  the  committee.     It  was  supposed  lecturk  xi. 
that  the  expression  "  ex  post  facto  law  "  neces-  "'■^^'"'y  ""^^^'^^ 

^  J  »/  clause  in  the  Con- 

sarily  iuchided  all  laws  bearing  upon  past  trans-  stitmion. 
actions,  and  that,  therefore,  Avith  this  prohibi- 
tion inserted  against  the  passage  of  ex  post  facto 
laws,  no  State  could  pass  any  law  impairing  a 
contract  already  made.  Another  extract  from 
the  same  work  will  be  of  interest  in  this  connec- 
tion. 

"  It  has  already  been  told  how  the  delegates 
from  Connecticut  had  agreed  among  themselves 
'  that  the  legislatures  of  the  individual  States 
ought  not  to  possess  a  right  to  make  any  laws 
for  the  discharge  of  contracts  in  any  manner 
different  from  the  agreement  of  the  parties.' 
Stringent  clauses  in  the  Constitution  already 
prohibited  paper  money.  For  the  rest.  King,  as 
we  have  seen,  proposed  a  clause  forbidding  the 
States  to  interfere  in  private  contracts  ;  but  the 
motion  had  been  condemned  as  reaching  too  far, 
and  instead  of  it,  at  the  instance  of  Rutledsre, 
the  Convention  denied  to  the  States  the  power 
Ho  pass  bills  of  attainder  or  ex  jwst  facto  laws.' 
In  this  manner  it  was  supposed  that  laws  for 
closing  the  courts,  or  authorizing  the  debtor  to 
pay  his  debts  Ijy  more  convenient  instalments 
than  he  had  covenanted  for,  were  effectually 
prohibited.  But  Dickinson,  as  we  have  seen, 
after  consulting  Blackstone,  mentioned  to  the 
House  that  the  term  ex  post  facto  related  to 
criminal  cases  only;  and  that  restraint  of  the 
States  from  retrospective  laws  in  civil  cases 
would  require  some  further  provision.     Before 


628 


LECTUKES    ON    CONSTITUTIONAL    LAW. 


I.KCTURE    XI. 

History  of  this 
clause  in  tlie  Con- 
stitutiou. 


Importance  of 
this  provision. 


an  explanatory  provision  had  been  made,  the 
section  came  into  the  hands  of  the  committee 
on  revision  and  style.  That  committee  had  no 
authority  to  bring  forward  any  new  proposition, 
but  only  to  make  corrections  of  style.  Gouver- 
neur  Morris  retained  the  clause  forbidding  ex 
post  facto  laws ;  and,  resolute  not  ^  to  counte- 
nance the  issue  of  paper  money  and  the  conse- 
quent violation  of  contracts,'  he  of  himself 
added  the  words :  '  No  State  shall  pass  laws 
altering  or  impairing  the  obligation  of  con- 
tracts.' The  Convention  reduced  the  explana- 
tory words  to  the  shorter  form  :  '  No  State  shall 
pass  any  law  impairing  the  obligation  of  con- 
tracts.' In  this  manner  an  end  was  designed 
to  be  made  to  barren  land  laws,  laws  for  the  in- 
stalment of  debts,  and  laws  closing  the  courts 
against  suitors.  Sherman  and  Ellsworth,  in 
their  official  letter  recommending  the  Constitu- 
tion to  Connecticut,  explained  the  intent  of  the 
Convention  by  saying :  '  The  restraint  on  the 
legislatures  of  the  several  States  respecting 
emitting  bills  of  credit,  making  anything  but 
money  a  tender  in  payment  of  debts,  or  impair- 
ing the  obligation  of  contracts  by  ex  post  facto 
laws,  was  thought  necessary  as  a  security  to 
commerce,  in  which  the  interest  of  foreigners 
as  well  as  of  the  citizens  of  different  States  may 
be  affected.' "  ^ 

I  do  not  say  that  these  words  providing  that 
no  State  shall  pass  any  law  "  impairing  the  obli- 


1  Bancroft's  History  of  the  Const,  of  the  U.  S.,  vol.  2,  book  3, 
c.  11 ;  author's  Last  Revise,  vol.  6,  pp.  361,  362. 


IMPAIRMENT  OF  CONTRACTS.  529 

gation  of  contracts"  are  the  most  important  in  lecture  xi. 
the  Constitution.  I  do  not  beUeve  it;  but  they  JbrprovSon. 
have  certainly  been  more  frequently  called  into 
operation  in  the  courts  than  any  other  single 
clause  of  that  instrument,  because  they  come 
into  immediate  connection  with  the  great  vol- 
ume of  business  and  traffic  dependent  upon  the 
sacredness  of  contracts.  Your  critical  attention 
is  called  to  these  few  words,  almost  every  one 
of  which  has  received  a  construction  by  the 
judicial  department  of  the  Government,  and 
almost  every  one  of  which  is  important. 

The  first  point  of  interest  is  that  "  no  State  " 
shall  pass  any  such  law.  There  is  no  such  pro- 
hibition upon  the  United  States,  or  Congress, 
contained  in  the  Constitution.  In  the  limita- 
tions upon  the  power  of  the  Federal  Govern- 
ment, contained  in  the  ninth  section  of  Article 
I,  it  will  be  noted  that  Congress  is  also  forbid- 
den to  pass  any  bill  of  attainder,  or  any  ex  post 
facto  law.  But  there  the  prohibition  stops,  and 
nothing  is  said  about  imj)airing  the  obligation  of 
contracts.  Indeed  that  could  not  have  been  for- 
bidden consistently  with  other  powers  vested  by 
that  instrument  in  Congress ;  for  section  eight, 
clause  four,  confers  upon  Congress  the  power  to 
establish  "  uniform  laws  on  the  subject  of  bank- 
ruptcies throughout  the  United  States."  Of 
course,  any  system  of  bankruptcy  with  which 
we  are  familiar,  however  it  may  be  in  conti- 
nental Europe,  includes  a  discharge  of  the 
debtor  from  his  debts,  and  a  distribution  of  his 
property   among   his    creditors.      It,  therefore, 


contracts. 


530  LECTURES    ON    CONSTITUTIONAL    LAW. 

lectuhk  XI.       necessarily  implies  the  power  of  impairing  the 
thIs*proWsion^      obligation  of  a  contract,  and  even  the  discharge 

of  it  altogether. 
The  legal  tender  So  the  legal  tciidcr  statutc,  which  declared 
aHbougrit"hn-"^^  ^^^^^  ^^^'^  Treasury  notes  of  the  United  States 
paired  existiug  sliould  be  lawful  tender  in  payment  of  any 
debt  due  to  the  Government  or  between  indi- 
viduals, except  for  customs  duties,  necessarily 
impaired  the  obligation  of  a  contract,  because 
at  the  time  the  contract  was  made  no  man  was 
bound  to  take  anything  but  gold  and  silver. 
The  contract  was  to  pay  coin  dollars,  and  there- 
fore when  Congress  authorized  the  debtor  to  pay 
it  in  legal  tender  notes  it  impaired  the  obligation 
of  his  contract.  Yet  that  law  has  been  held  to 
be  constitutional,  although  there  are  people  who 
doubt  it.  I  am  not  one  of  these,  however ;  and 
I  have  no  doubt  that  Congress  had  the  power,  in 
the  emergency  which  then  existed,  to  declare 
those  notes  a  legal  tender  for  the  payment  of 
debts. 

The  prohibition  is  It  will  bc  further  notcd  that  the  language  is 
that  no  State  shall  pass  "any  law"  impairing  the 
obligation  of  contracts.  This  means  that  it  is  a 
statute  of  a  State  which  is  forbidden,  or  some- 
thing which  is  equivalent  to  such  a  statute, 
possessing  the  same  dignity  and  character,  and 
passed  or  enacted  by  the  authority  of  the  State. 
It  is  unnecessary  to  go  into  details  in  regard  to 
this  point,  for  it  has  been  repeatedly  decided  by 
all  the  courts  with  which  I  am  familiar  before 
whom  the  subject  has  come,  that  it  must  be 
either  a  Constitution   or   a  statute   of  a  State 


against  State 
legislation 


IMPAIRMENT    OF    CONTRACTS.  531 

which   impairs   such  an  obligation   to  bring  it  lecture  xi. 
within  the-  meaning  of  these  words  used  in  the  The  prohibition  is 

o  against  State 

Federal  Constitution.  A  judicial  decision  by  legi-siatjou. 
the  courts  of  a  State  that  a  certain  contract  is 
good  or  bad,  is  valid  or  invalid,  is  of  this  or 
that  character,  is  not  a  "law  "  passed  by  a  State, 
as  has  sometimes  been  supposed.  It  is  not  true, 
therefore,  that  every  decision  of  a  State  or  other 
court,  adverse  to  the  assertion  of  the  rights  of  a 
promisee  or  claimant  under  a  contract,  violates 
this  provision  of  the  Constitution.  What  is 
meant  is  that  after  the  contract  has  been  made 
no  State  shall  make  a  law  which  impairs  its 
force,  and  it  does  not  mean  anything  more  than 
that. 

It  has  been  held  several  times  in  the  Supreme 
Court  of  the  United  States  that  no  mere  decis- 
ion of  a  State  court,  or  inferior  Federal  court, 
on  the  subject  of  the  validity  of  a  contract,  or  the 
mode  of  its  discharge,  is  within  the  meaning  of 
this  provision,  unless  it  be  founded  upon  a  stat- 
ute or  constitution  of  a  State  passed  subsequent 
to  the  making  of  the  contract.^ 

The  Constitution  of  a  State,  or  any  act  of  its  Existing  state 
legislature,  in  existence  at  the  time  a  contract  is  ^7^  enter  into 

o  '  all  contracts. 

made,  becomes  thereby  a  part  of  that  contract. 
It  is  a  universal  rule  that  every  contract  is  made 
with  a  view  to  the  laws  extant  at  the  place  of 
execution,  which  become  a  part  of  it,  and  by  the 
aid  of  which  it  is  to  be  read  and  expounded. 

1  Bailroad  Co.  v.  Rock,  4  Wall.  177  ;  University  v.  FropJc,  09 
U.  S.  OOO,  :i20;  Railruad  Co.  v.  yfcClnre,  10  Wall.  511  ;  Knojc  v. 
Exchange  Bank,  12  Wall.  379. 


532 


LECTURES    ON"    CONSTITUTIONAL    LAW. 


Lecture  XI. 

Existiug  State 
l;iws  enter  into 
all  contracts. 


The  Dartmouth 
College  Case. 


Reservation 
clauses  in  acts  of 
incorporation. 


Therefore  no  statute  in  existence  at  the  time  it 
was  made  could  be  a  law  impairing  its  obliga- 
tion, within  the  meaning  of  the  Constitution, 
because  it  would  be  a  part  of  the  contract  itself. 

This  is  well  set  forth  in  a  case  ^  in  which 
the  question  raised  was  whether  a  contract  was 
not  void,  within  the  meaning  of  this  clause,  by 
reason  of  some  legislation  antecedent  to  its  exe- 
cution, but  the  court  said :  "  The  inhibition  of 
the  Constitution  is  wholly  prospective.  The 
States  may  legislate  as  to  contracts  thereafter 
made,  as  they  may  see  fit.  It  is  only  those  in 
existence  when  the  hostile  law  is  passed  that 
are  protected  from  its  effects."  It  is  clear, 
therefore,  that  the  constitutional  provision  ap- 
plies only  to  statutes  passed  after  the  contract 
is  made. 

There  have  been  numerous  efforts  by  individ- 
ual States  at  different  times  to  make  certain 
classes  of  contracts  subject  to  future  legislation. 
The  celebrated  Dartmouth  College  Case  ^  was  the 
earliest  which  decided  that  a  charter  granted 
to  a  private  corporation  was  a  contract  between 
the  corporation  and  the  State  which  granted  it. 
The  result  of  that  decision  was  that  many  stat- 
utes, which  it  had  been  supposed  the  State 
legislatures  could  repeal  or  modify,  were  found 
to  be  of  such  a  character  that  they  could  not 
be  changed. 

This  principle,  as  applied  to  the  efforts  of  the 
legislature  of  the  States  to  escape  the  force  of 

1  Edimrds  v.  Kearzey,  96  U.  S.  595,  608. 

2  Dartmoiith  College  v.  Woodward.,  4  Wheat.  513. 


IMPAIRMENT  OF  CONTRACTS.  533 

this  constitutional  provision,  was  recently  exam-  lecture  xi. 

ined  by  this   Court.  Reservation 

^  clauses  in  acts  of 

The  legislatures  commenced  by  making  what  incorporation, 
they  called  "  reservation  clauses "  in  all  their 
acts  of  incorporation,  which  reserved  to  the  leg- 
islature the  power  of  making  alterations,  amend- 
ments, or  of  repealing  those  statutes,  and  many 
of  the  States  went  so  far  as  to  pass  a  general 
law  that  all  acts  of  incorporation  should  be 
subject  to  repeal,  modification,  or  alteration  by 
the  legisiature.  The  argument,  which  has  been 
sustained,  was  that,  since  these  charters  were 
granted  with  this  provision  in  them,  either  spe- 
cifically* stated  or  contained  in  the  general  law 
under  which  the  corporation  was  organized,  it 
thus  became  a  part  of  the  contract,  and  such 
charters  could  be  repealed,  altered,  or  modified. 
Therefore,  any  such  action  on  the  part  of  the 
legislature  could  not  be  a  violation  or  impair- 
ment of  the  ol^ligation  of  a  contract,  since  the 
permission  to  do  it  was  a  part  of  the  contract. 
This  court  said  :  — 

"  A  short  reference  to  the  origin  of  this  reser- 
vation of  the  right  to  repeal  charters  of  corpora- 
tions may  be  of  service  in  enabling  us  to  decide 
upon  its  office  and  effect  when  called  into  opera- 
tion by  the  legislative  exercise  of  the  power. 

"As  early  as  1806,  in  the  case  of  Wales  v. 
Stetson,  2  Mass.  143,  the  Supreme  Court  of  that 
State  made  the  declaration  '^  that  the  rights 
legally  vested  in  all  corporations  cannot  be  con- 
trolled or  destroyed  by  any  subsequent  statute, 
unless  a  power  for  that  purpose  be  reserved  to 


534  LECTUEES    ON    CONSTITUTIONAL   LAW. 

Lecture  XI.       the  legislature  in  the  act  of  incorporation.'     In 
veseivation         TruHtees  of  Dartmouth   Colleqe  v.  W(jodward,  4 

clauses  m  acts  of  -^  •'  ' 

incorporation.  Wlicat.  518,  decided  in  1819,  this  court  an- 
nounced principles  on  the  subject  of  the  pro- 
tection that  the  charters  of  private  corporations 
were  entitled  to  claim,  under  the  clause  of  the 
Federal  Constitution  against  impairing  the  obli- 
gation of  contracts,  which,  though  received  at 
the  time  with  some  dissatisfaction,  have  never 
been  overruled  in  this  court.  The  opinion  in 
that  case  carried  the  protection  of  the  constitu- 
tional provision  somewhat  in  advance  of  what 
had  been  decided  in  Fletcher  v.  Peck,  6  Cranch, 
87,  and  the  preceding  cases,  and  held  that  it 
applied  not  only  to  contracts  between  individuals, 
and  to  grants  of  property  made  by  the  State  to 
individuals,  or  to  corporations,  but  that  the  rights 
and  franchises  conferred  upon  jorivate  as  dis- 
tinguished from  public  corporations  by  the  legis- 
lative acts  under  which  their  existence  was 
authorized,  and  the  right  to  exercise  the  functions 
conferred  upon  them  by  the  statute,  were,  when 
accepted  by  the  corporators,  contracts  which  the 
State  could  not  impair. 

"  It  became  obvious  at  once  that  many  acts  of 
incorporation  which  had  been  passed  as  laws  of 
a  public  character,  partaking  in  no  general  sense 
of  a  bargain  l^etween  the  States  and  the  corpora- 
tions which  they  created,  but  which  yet  conferred 
private  rights,  were  no  longer  subject  to  amend- 
ment, alteration,  or  repeal,  except  by  the  consent 
of  the  corporate  body,  and  that  the  general  con- 
trol which  the  legislatures  creating  such  bodies 


IMPAIRMENT  OF  CONTRACTS.  bob 

had  previously  supposed  they  had  the  right  to  lecture  xi. 

1  •    ,     1         tj  1       1  i    Reservation 

exercise,  no  longer  existed,  it  was,  no  tioubt,  ^.,j^^j,ggij,  jjpt3j,j 
with  a  view  to  suggest  a  method  by  which  the  iucorporatiou. 
State  legislatures  could  retain  in  a  large  measure 
this  important  power,  without  violating  the  pro- 
vision of  the  Federal  Constitution,  that  Mr.  Justice 
Story,  in  his  concurring  opinion  in  the  Dartmouth 
College  Case,  suggested  that  when  the  legislature 
was  enacting  a  charter  for  a  corporation,  a  pro- 
vision in  the  statute  reserving  to  the  legislature 
the  right  to  amend  or  repeal  it  must  be  held  to 
be  a  part  of  the  contract  itself,  and  the  subse- 
quent exercise  of  the  right  would  be  in  accordance 
with  the  contract,  and  could  not,  therefore,  im- 
pair its  obligation.  And  he  cites  with  approval 
the  observations  we  have  already  quoted  from 
the  case  of  Wales  v.  Stetson,  2  Mass.  143. 

"  It  would  seem  that  the  States  were  not  slow 
to  avail  themselves  of  this  suggestion,  for  while 
we  have  not  time  to  examine  their  legislation 
for  the  result,  we  have  in  one  of  the  cases  cited 
to  us  as  to  the  effect  of  a  repeal,  McLaren  v. 
Pennington,  1  Paige,  102,  in  which  the  legisla- 
ture of  New  Jersey,  when  chartering  a  bank  with 
a  capital  of  $400,000  in  1824,  declared  by  its 
seventeenth  section  that  it  should  be  lawful  for 
the  legislature  at  any  time  to  alter,  amend,  and 
repeal  the  same.  And  Kent,  2  Com.  307,  speak- 
ing of  what  is  proper  in  such  a  clause,  cites  as 
an  example  a  charter  by  the  New  York  legisla- 
ture, of  the  date  of  February  25,  1822.  How 
long  the  legislature  of  Massachusetts  continued 
to  rely  on  a  special  reservation  of  this  power  in 


536  LECTURES    ON    CONSTITUTIONAL   LAW. 

Lecture  XI.       each  charter  as  it  was  granted,  it  is  unnecessary 
Keservation         ^^  inquire;  for  in  1831  it  enacted  as  a  law  of 

(Clauses  m  acts  of  i  ' 

incorporation.  general  application,  that  all  charters  of  corpora- 
tio'ns  thereafter  granted  should  be  subject  to 
amendment,  alteration,  and  repeal  at  the  pleasure 
of  the  legislature,  and  such  has  been  the  law  ever 
since. 

*'  This  history  of  the  reservation  clause  in  acts 
of  incorporation  supports  our  proposition,  that 
whatever  right,  franchise,  or  power  in  the  cor- 
j)oration  depends  for  its  existence  upon  the  grant- 
ing clauses  of  the  charter,  is  lost  by  its  repeal."  ^ 

Retroactive  laws.  The  objectionablc  feature  of  the  legislation 
which  we  have  discussed,  where  a  legislative  body 
attempted  to  exercise  some  authority  over  existing 
contracts,  was  that  it  was  retrospective  or  retro- 
active, the  two  words  being  almost  synonymous, 
the  first  meaning  looking  backwards  or  behind 
and  the  other  acting  backwards,  being  intended 
to  operate  upon  some  past  transaction. 

It  is  not  all  retrospective  laws,  however,  that 
are  forbidden  by  this  clause  of  the  Constitution, 
but  only  such  as  impair  the  obligation  of  a  con- 
tract. Ex  post  facto  laws  are  also  forbidden  in 
the  same  clause,  but,  as  before  explained,  that 
term  is  only  applied  to  criminal  laws  and  pro- 
cedure, and  has  no  reference  to  contracts.  There 
is  a  large  class  of  retrospective  legislation  which 
is  constitutional,  not  inconsistent  with  the  prin- 
ciples above  laid  down,  and  sometimes  necessary 
and   proper,   relating  to   rights    not    dependent 

1  Greenwood  v.  Freiyht  Co.,  105  U.  S.  13,  19,  21. 


IMPAIRMENT  OF  CONTRACTS.  537 

upon  contract  or  affecting  the  individual  by  in-  lecture  xi. 
creasing  his  liability  to  a  criminal  prosecution,  ^^^o*^*^^^  '*^8- 
It  will  be  observed,  however,  that  this  class  of 
statutes  is  not  favored,  nor  is  it  large,  but  that 
there  is  a  class  of  legislation  retrospective  in  its 
character,  which  is  not  forbidden  by  the  Con- 
stitution, having  no  relation  to  contracts  or  to 
crimes,  should  not  be  overlooked. 

Perhaps  the  best  illustration  of  a  valid  retro- 
spective law  to  be  found  in  the  reported  decisions 
of  the  Supreme  Court  of  the  United  States,  not 
amenable  to  the  objections  already  set  forth,  is 
contained  in  SatterJee  v.  Mattliewson,  2  Pet.  380, 
decided  in  1829.  That  was  a  case  where  a 
judgment  had  been  rendered  in  a  court  of  Com- 
mon Pleas  of  the  State  of  Pennsylvania,  in  favor 
of  the  plaintiff,  who  claimed  land  occupied  by  the 
defendant  as  a  tenant  under  what  was  known 
as  a  "  Connecticut  title."  This  was  reversed  by 
the  Supreme  Court  of  the  State  on  the  ground 
that  the  relation  of  landlord  and  tenant  could 
not  subsist  under  such  a  title.  Before  the  sec- 
ond trial  took  place  the  legislature  passed  a  law 
which  said  that  the  relation  of  landlord  and 
tenant  could  exist  in  such  cases,  and  on  the  re- 
trial, judgment  being  given  for  the  plaintiff,  it 
was,  on  the  strength  of  this  statute,  affirmed. 
The  case  was  then  brought  to  the  Supreme  Court 
of  the  United  States  under  the  idea  that  this 
statute  of  the  State  of  Pennsylvania  was  either 
an  ex  post  facto  law,  or  a  law  impairing  the 
obligation  of  contracts,  within  the  meaning  of 
the  clause  of  the  Constitution  we  are  now  con- 


538  LECTURES    ON    CONSTITUTIONAL    LAW. 

lkctuke  XI.       sidering.     That  court  held,  however,  that  it  did 
Retroactive  laws.  ^^^  ^^-^^^  ^^iQ  obligation  of  a  coiitract,  nor  was 

it  an  ex  post  facto  law,  and  that  it  was  not, 
therefore,  repugnant  to  the  Constitution  of  the 
United  States,  for  "  retrospective  laws  which  do 
not  impair  the  obligation  of  contracts,  or  par- 
take of  the  character  of  ex  j^ost  facto  laws,  are 
not  condemned  or  forbidden  by  any  part  of  that 
instrument,"  The  opinion  was  delivered  by 
Mr.  Justice  Washington,  one  of  the  ablest 
judges  this  country  ever  produced.  He  was 
over  thirty  years  upon  the  bench  of  the  Supreme 
Court  of  the  United  States  at  a  period  when 
very  few  of  the  associate  justices  delivered 
opinions.  His  four  volumes  of  Circuit  Court 
reports  are  also  the  most  valued  of  any  of  those 
reports  in  existence,  and  are  very  difficult  to 
obtain.     He*  said  in  that  case :  — 

"  The  objection,  however,  which  was  most 
pressed  upon  the  court,  and  relied  upon  by  the 
counsel  for  plaintiff  in  error,  was  that  the  effect 
of  this  act  was  to  divest  rights  which  were 
vested  by  law  in  Satterlee.  There  is  certainly 
no  part  of  the  Constitution  of  the  United  States 
which  applies  to  a  State  law  of  this  description  ; 
nor  are  we  aware  of  any  decision  of  this,  or  of 
any  Circuit  Court,  which  has  condemned  such  a 
law  upon  this  ground  ;  provided  its  effect  be  not 
to  impair  the  obligation  of  a  contract."^ 

In  1834  Mr.  Justice  Story,  delivering  the  opin- 
ion of  the  court,  said :  "  It   is  clear   that   this 

1  2  Pet.  413. 


IMPAIRMENT  OF  CONTRACTS.  539 

court  has  no  right  to  pronounce  an  act  of  the  lecture  xi. 
State  legislature  void,  as  contrary  to  the  Consti-  i^'^troactive  laws, 
tution  of  the  United  States,  from  the  mere  fact 
that  it  divests  antecedent  vested  rights  of  prop- 
erty. The  Constitution  of  the  United  States  does 
not  prohibit  the  States  from  passing  retrospective 
laws  generally,  but  only  ex  jjost  facto  laAvs."  ^ 

He  then  goes  on  to  state  that  the  latter  phrase 
"  is  not  applicable  to  civil  laws,  but  to  penal 
and  criminal  laws ;  "  so  it  wdll  be  seen  that  it  is 
not  every  retrospective  law  which  is  forbidden 
by  the  Constitution  of  the  United  States  as 
impairing  the  obligation  of  contracts. 

Proceeding  then  in  order  with  the  critical  what  is  the  obii- 
examination  of  this  short  sentence,  every  word  f^^Jto*^ 
of  which  is  important  and  has  been  the  subject 
of  judicial  consideration,  we  come  next  to  in- 
quire, what  is  the  "  obligation  "  of  a  contract, 
which  no  State  shall  pass  any  law  to  impair? 
This  is  necessary  as  a  preliminary  to  consider- 
ing what  it  is  that  impairs  it,  for  it  is  this  obli- 
gation which  cannot  be  impaired  by  the  State. 
It  has  often  been  the  subject  of  definition  by  the 
courts.  In  a  recent  case^  may  be  found  the  fol- 
lowing language : — 

"  '  Obligation '  is  defined  to  be  '  the  act  of  oblig- 
ing or  binding ;  that  which  obligates  ;  the  bind- 
ing power  of  a  vow,  promise,  oath,  or  contract.' 
.  .  .  The  obligation  of  a  contract  includes  every- 
thing within  its  obligatory  scope.  Among  these 
elements  nothing  is  more  important   than  the 

1  Watson  V.  Mercer,  8  Pet.  88,  110. 

2  Edwards  v.  Kearzey,  96  U.  S.  595,  600. 


540 


LECTURES   ON    CONSTITUTIONAL   LAW. 


LECTtJRE   XL 

What  is  the  obli- 
gation of  a  con- 
tract ? 


means  of  enforcement.  This  is  the  breath  of  its 
vital  existence.  Without  it,  the  contract,  as 
such,  in  the  view  of  the  law,  ceases  to  be,  and 
falls  into  the  class  of  those  '  imperfect  obliga- 
tions,' as  they  are  termed,  which  depend  for 
their  fulfilment  upon  the  will  and  conscience  of 
those  upon  whom  they  rest.  The  ideas  of  right 
and  remedy  are  inseparable." 

In  ordinary  language,  there  is  a  moral  and 
a  legal  obligation  to  do  wdiat  we  promise  to  do, 
and  it  is  familiar  thought  and  speech  to  draw 
the  distinction  between  a  moral  and  a  legal 
obligation.  The  moral  one  addresses  itself  to 
the  conscience,  to  the  sense  of  duty,  to  the  sense 
of  right  and  wrong.  As  observed  in  the  last 
quotation  there  is  a  binding  power  in  a  vow ; 
there  is  a  moral  obligation  to  do  anything  which 
one  promises  to  do,  unless  it  is  something  wrong 
or  wicked.  A  consideration  is  the  essence  of  all 
legal  contracts,  and  of  all  those  obligations  which 
do  not  depend  upon  it  but  rather  upon  the  faith 
due  to  yourself  and  your  own  sense  of  moral 
right,  and  which  address  themselves  to  your  own 
conscientious  determination  to  do  what  you  have 
said  you  would  do,  neither  the  law  nor  the  Con- 
stitution takes  any  cognizance.  So  far  as  the 
law  is  concerned  the  obligation  of  a  contract  is 
the  means  by  which  the  law  enforces  a  legal 
duty,  and  it  is  that  with  which  the  law  and  the 
Constitution  deals.  In  this  sense  the  obligation 
of  a  contract  consists  in  the  authority  or  power 
which  the  law  gives  to  enforce  its  performance, 
or  to  give  a  remedy  for  its  non-performance. 


IMPAIRMENT  OF  CONTRACTS.  541 

The  next  thing  in  proper  sequence  to  consider  lecture  xi. 
is  what  it  is  to  'impair"  this  obligation,  which  ^I!'.^*  r'""'r '"" 

r  O  7  obligation  of  a 

is  at  once  the  means  and  the  remedy  given  by  contract? 
the  law  to  compel  a  man  to  perform  his  con- 
tracts, or  in  case  of  failure  forces  him  to  make 
proper  compensation  in  damages.  It  follows 
that  to  impair  this  obligation  by  a  State  law  is 
in  some  way  to  weaken  or  diminish  the  power 
which  the  courts  had  when  the  contract  was 
made  to  enforce  it,  if  enforceable  specifically,  or 
to  give  remedy  by  damages  for  failure  to  per- 
form it. 

It  is  needless  here  to  advert  to  the  difference 
between  specific  performance  and  damages  for 
non-performance.  In  a  very  limited  class  of 
cases  only  are  contracts  capable  of  being  specifi- 
cally enforced  by  the  court,  such  .'•s  conveyance 
of  real  estate,  and  some  others,  where  the  judi- 
cial power  can  take  hold  of  a  man  and  compel 
him  to  do  what  he  has  promised.  In  much  the 
larger  number  of  cases  at  law  the  remedy  is  by 
way  of  damages  in  a  money  judgment  for  not 
performing  the  thing  promised.  A  State  statute 
or  law  that  impairs  the  obligation  of  a  contract 
must  be  one  which  takes  away  the  remedy  for 
its  violation.  It  may  take  away  all  remedy,  or 
the  most  valuable  one  extant  at  the  time  the 
contract  was  n^ade  by  which  to  secure  its  specific 
enforcement,  or  damages  for  its  non-perform- 
ance. Accordingly  we  find  that  nearly  all  the 
long  list  of  cases  that  have  come  into  the  courts 
for  relief  against  State  laws  and  statutes,  on  the 
ground  that  they  had  the  effect  of  impairing 


542  LECTURES  ON  CONSTITUTIONAL  LAW. 

Lecture  XI.       the  obligation  of  a  contract,  have  had  relation 
What  impairs  the  ^  ^^j^gj^^g  aboUshincr  or  chanmnff  the  rem- 

obligation  of  a  o  o      o 

contract?  edy  for  any  infringement  of  such  contract. 

It  is  not  every  change  of  remedy,  however, 
which  impairs  the  ol:)ligation  we  are  considering. 
It  is  not  necessary  that  the  legislature  should 
always  permit  the  same  remedial  forms  to  re- 
main because  contracts  are  in  existence  at  the 
time  it  is  thought  advisable  to  change  the  mode 
by  which  a  suitor  may  obtain  relief.  The  amal- 
gamation of  the  common  law  with  the  chancery 
system  of  procedure  in  different  States  is  no  im- 
pairment of  the  remedy  if  it  can  still  be  obtained 
by  petition,  or  by  any  mode  of  procedure  which 
is  left.  Indeed,  the  true  line  of  distinction,  be- 
tween the  change  which  impairs  the  obligation 
of  a  contract  and  that  which  does  not,  is  found 
in  considering  whether  such  change  of  remedy 
leaves  a  sufficient  and  efficient  remedy  or  pro- 
vides a  new  and  adequate  one  in  its  place. 

This  question  has  frequently  been  before  the 
Supreme  Court,  and  perhaps  the  best  expression 
of  its  views  on  this  subject  is  to  be  found  in  a 
recent  case,^  in  which  the  language  of  the  court 
is  as  follows  :  — 

"  If  a  particular  form  of  proceeding  is  pro- 
hibited, and  another  is  left  or  is  provided  which 
affords  an  effective  and  reasonable  mode  of  en- 
forcing the  right,  the  obligation  of  the  contract 
is  not  impaired." 

That  was  a  case  where  the  notes  of  the  Bank 

1  Tennessee  v.  Sneed,  96  U.  S.  69,  74. 


IMPAIRMENT    OF    CONTRACTS.  543 

of  Tennessee  had,  when  it  was  chartered  in  lecture  xi. 
1838,  been  made  receivable  for  taxes  by  the  ^j^J^^^JJ^JJI^J'!^^ '^ 
State  of  Tennessee,  which  was  interested  as  part  contract? 
owner  in  the  bank.  During  the  period  immedi- 
ately succeeding  the  rebellion  the  State  wanted 
to  get  rid  of  the  necessity  of  redeeming  or 
allowing  these  notes  to  be  used  in  the  payment 
of  taxes,  and  a  statute  was  passed  on  that  sub- 
ject in  1873.  At  that  time  the  remedy  by  man- 
damus existed,  and  if  the  tax  receiver  refused  to 
take  the  banknotes  for  taxes  the  party  offering 
them  could  apply  to  the  proper  court  and  by 
writ  of  mandamus  have  the  tax  receiver  brought 
before  the  court,  compelled  to  accept  them,  and 
give  a  receipt.  The  statute,  however,  which 
abolished  the  remedy  by  mandamus  made  provi- 
sion for  another,  to  wit,  that  if  the  notes  were 
not  received  by  the  tax  collector  a  suit  might  be 
brought  against  him  which  should  be  defended 
by  the  State,  and,  in  case  the  plaintiff  obtained 
a  judgment,  that  the  mone}^  should  be  paid  to 
him  out  of  the  treasur}^  of  the  State.  The 
Supreme  Court  of  the  United  States  held  that 
this  latter  remedy  was  a  better  one  than  the 
former,  for  ''  a  suit  at  law  to  recover  money  un- 
lawfully exacted  was  as  speedy,  as  easily  tried, 
and  less  complicated  than  a  writ  of  mandamus," 
and  was  therefore  a  better  proceeding  for  the 
purpose.  It  gave  to  the  complainant  a  sufficient 
remedy,  and  was  not  therefore  a  law  that  im- 
paired the  obligation  of  a  contract. 

Statutes    of   limitations    also   present    an   in- statutes  of  limita- 
stance  in  which  it  has  been  supposed  that  there 


544  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  XI.       was  an  infringement  of  this  clause  of  the  Consti- 
siatutesofiimita-  ^^^Jq^^     ^j^^  ^^^^^  -^  ^j^-^j^  ^j^.^^  subiect  was  dis- 

tions.  _      _        •'_ 

cussed  show  very  clearly  the  distinction  and  real 
difference  between  a  law  which  impairs  the  obli- 
gation of  a  contract  and  one  which  does  not. 
Suj)pose,  for  example,  that  the  ordinary  period 
of  limitation  within  which  an  action  may  be 
brought  upon  a  promissory  note  is  ten  years, 
but  the  legislature  chooses  to  shorten  it,  as  most 
of  them  have,  to  five  or  six  years.  Such  a  stat- 
ute would  not  be  held  void,  as  contrary  to  the 
constitutional  provision  we  are  considering,  if 
it  gave  the  plaintiff  a  reasonable  time  within 
which  to  bring  his  suit  before  it  took  effect, 
although  it  would  be  if  the  remedy  were  at 
once  extinguished. 

In  some  instances  statutes  have  been  passed 
declaring  that  hereafter  no  remedy  shall  exist 
on  contracts  where  the  right  of  a  claim  has  al- 
ready run  live  years.  Now,  inasmuch  as  some 
of  those  contracts  may  have  already  been  past 
due  for  five  years,  that  would  be  cutting  off  all 
such  cases  absolutely,  without  giving  any  time 
under  the  new  statute  within  which  to  bring 
suit,  and  in  so  far  as  these  statutes  have  had 
that  effect  they  have  been  held  to  be  unconstitu- 
tional. These  statutes,  of  limitation,  although 
they  diminished  the  period  within  which  a  com- 
plainant is  bound  to  sue,  were,  as  early  as  the 
case  of  Sturges  v.  Croivninshield,^  which  was 
decided   in    1819,  declared   not   to   impair  the 

1  4  Wheat.  122. 


IMrAIRMENT    OF    CONTRACTS. 


obligation  of  contracts ;  but  in  the  recent  case  of  lecturk  xi. 
Terry  v.  Ayiderson,^  the  subject  is  reviewed  at  fj^^^^\"^'' °^ ''°''*^" 
length,   and  the   distinction    above   taken    sug- 
gested.    Tlie    headnote   of    that    case    correctly 
states    the    doctrine   decided   by   the    court   as 
follows  :  — 

"  An  enactment  reducing  the  time  prescribed 
by  the  statute  of  limitations  in  force  when  the 
right  of  action  accrued,  is  not  unconstitutional, 
provided  a  reasonable  time  be  given  for  the  com- 
mencement of  a  suit  before  the  bar  takes  effect." 

A  very  remarkable  instance  may  be  noted  in  Abolition  of  im- 
this  connection  of  a  law  operating  upon  a  rem-  Jgl^^""'"^"^  ^^^ 
edy,  which  was  supposed  to  impair  the  obliga- 
tion of  a  contract,  but  which  was  held  by  the 
Supreme  Court  not  to  have  that  effect;  that  is, 
the  abolition  of  imprisonment  for  debt.  At  the 
time  the  Constitution  of  the  United  States  was 
adopted  it  is  probable  that  imprisonment,  as  a 
means  of  enforcing  the  collection  of  a  judgment, 
was  the  law  of  every  State  in  the  Union.  And 
yet  soon  after  that,  every  State  had  abolished 
that  method  of  compelling  the  collection  of 
debts.  Of  course,  when  this  was  done,  at  dif- 
ferent times  in  the  different  States,  there  were 
in  existence  many  debts  which  had  arisen  under 
contracts  made  before  that  statute  was  passed. 
In  such  cases  it  is  somewhat  difficult  to  see  how 
the  Supreme  Court  came  to  the  conclusion  which 
they  reached  at  that  time,  that  those  laws  did 
not  impair  the  obligation  of  such  contracts.     It 

1  95  U.  S.  028. 


546 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  XI. 
Abolition  of  im- 
prisonment for 
debt. 


Exemptions  from 
execution. 


is  hard  to  imagine  a  more  stringent  mode  of 
compelling  a  man  to  pay  his  debts  than  seizing 
him  and  putting  him  in  prison,  unless  corporal 
punishment  is  inflicted  upon  him.  That  right 
of  arrest  and  imprisonment  the  creditor  then 
had,  and  yet  the  Supreme  Court  in  one  or  two 
well  considered  opinions,  though  not  without 
dissent,  held  that  the  right  to  imprison  a  man 
was  not  a  part  of  his  contract,  nor  a  part  of  the 
remedy  that  belonged  to  it  when  it  was  made. 

The  case  which  first  announced  this  doctrine, 
although  the  question  was  not  directly  in  issue, 
was  that  of  Sturges  v.  Crovminskield,  ubi  siqjra. 
It  was  afterwards  put  directly  in  issue  in  a  case  * 
in  which  the  opinion  of  the  court  was  delivered 
by  Justice  Thompson,  Justice  Washington  dis- 
senting.    It  was  again  affirmed  in  1835.^ 

Having  thus  discussed  the  various  classes  of 
statutes  which  have  been  held  not  to  impair  the 
obligation  of  contracts,  although  at  one  time 
supposed  to  do  so,  let  us  now  examine  those 
which  do  impair  them.  The  latter  have  often 
been  the  subject  of  earnest  contention  in  the 
courts.  One  of  the  first  to  be  considered  is  a 
class  of  enactments  known  in  this  country  as 
exemption  laws,  which  exempt  a  certain  amount 
of  the  property  of  a  debtor  from  a  forced  judicial 
sale,  either  by  execution  or  decree  of  the  court. 
The  enactment  of  these  statutes  was  commenced, 
probably  in  every  State  in  the  Union,  after  the 
adoption  of  the  Constitution,  and  has  been  con- 

1  Mason  v.  Ilailc,  12  Wheat.  370. 

2  Beers  v.  Haughton,  9  I'et.  329. 


IMPAIKMENT  OF  CONTRACTS.  647 

tinued  in  pursuance  of  a  liberal  policy  of  which  lecture  xi. 
everybody  has  come  to  approve.  At  first  the  ^^^^"^1^;]'" """"' 
value  and  amount  of  the  property  exempted  was 
very  small ;  such  as  beds  and  bedding  and  the 
cooking  utensils  of  the  family.  These  were 
generally  the  first  articles  exempted  from  a 
forced  sale  for  debt.  Afterwards  their  scope 
was  enlarged  to  exempt  the  library  of  the  law- 
yer, as  well  as  the  surgeon's  implements  and 
books,  and  gradually  extended  to  larger  amounts 
of  personal  property,  as  for  instance,  exempting 
from  sale  all  the  household  furniture  of  a  family. 
Then  in  some  of  the  States  they  proceeded  to 
exempt  the  homestead,  as  it  is  called.  In  nearly 
all  of  the  Western  States  the  house  in  which  the 
debtor  resides,  together  with  the  land  on  which 
it  stands,  have  been  brought  within  the  purview 
of  these  statutes.  This  homestead  is  exempted 
either  by  a  description  of  the  quantity  of  land 
which  it  is  permitted  to  cover,  or  by  some  limi- 
tation in  its  value,  such  as  that  it  shall  not 
exceed  $1000,  or  $3000,  or  $5000  in  value,  or 
go  beyond  one  acre  or  forty  acres. 

There  is,  however,  one  difficulty  inherent  in 
these  various  modes  of  exempting  the  homestead. 
As  for  instance,  where  the  exemption  is  by  a 
description  of  the  quantity  which  may  be  allowed 
without  reference  to  its  value,  great  injustice 
has  frequently  resulted.  A  debtor  might  have 
$100,000  which  his  creditors  could  not  touch 
where  such  an  exemption  was  in  force. 

So  far  as  these  laws,  or  any  of  them,  have 
had  the  effect  to  operate  upon  contracts  in  ex- 


548  .   LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  XL  istciice  wlieii  tliey  were  passed  they  have  been 
eiTcuiion."' ''"'"  uniformly  held  by  the  Supreme  Court  of  the 
United  States,  as  well  as  by  nearly  all  the  other 
courts  before  whom  the  question  has  come,  to 
be  forbidden  by  the  clause  of  the  Constitution 
we  are  now  considering.  To  the  extent  that 
they  impair  the  obligation  of  contracts,  or  hin- 
der the  creditor  from  collecting  his  debt,  they 
benefit  the  debtor  and  place  him  in  a  better 
position  at  the  expense  of  the  creditor,  and  so 
;  are  repugnant  to  this  clause  of  the  Constitution. 
It  matters  not  whether  the  sum  involved  be 
large  or  small,  every  law  which  has  this  effect 
in  regard  to  past  contracts,  or  those  in  existence 
when  the  law  took  effect,  is  void.  As  to  future 
contracts  the  exemption  becomes  a  part  of  the 
contract  and  therefore  the  law  which  is  passed 
by  the  State  is  valid  as  to  them.  This  is  in 
brief  a  statement  of  the  principles  which  may 
be  deduced  from  a  consideration  of  the  cases  in 
which  this  class  of  statutes  has  been  considered. 
Redemption  laws.  Another  class  of  statutes,  bearing  a  strong 
analogy  to  those  we  have  just  been  considering, 
are  called  redemption  laws.  These  relate  to 
lands  and  houses  sold  under  execution  for  debt. 
Most  of  the  States  of  the  Union  have  provided 
^that  when  land  is  sold  under  execution  the 
debtor  shall  have  a  certain  time  given  him 
within  which  to  pay  the  sum  for  which  it  sold, 
.with  costs  and  interest,  and  thus  redeem  it.  So 
far  as  these  statutes  applied  to  contracts  in 
existence  at  the  time  they  were  passed,  they 
have  been  held  to  impair  the  obligation  of  con- 


IMrAlKMENT  OF  CONTRACTS.  549 

tracts.     This  tliey  clearly  do,  for  they  allow  the  lecture  xi. 
debtor  a  certahi  time,  in  some  cases  a  year  or  ^^^'^^p**''"  '*^^»- 
more,  after  the  time  at  which  the  creditor  could 
have  otherwise  collected  his  debt,  thus  extending 
the  time,  compelling  him  to  buy  in  the  property, 
and  permitting  the  debtor  to  redeem.^ 

Another  class  of  enactments  of  the  same  char-  Appraisement 
acter  are  called  appraisement  laws,  and  are  very 
common  in  the  Western  States.  All  of  these 
statutes,  it  will  be  observed,  are  made  in  the 
interest  of  struggling  debtors,  and  show  the 
consideration  which  the  legislatures  have  had, 
especially  in  the  new  and  poorer  communities 
of  the  West,  for  those  who  are  struggling  with 
the  hardships  and  vicissitudes  incident  to  the 
development  of  a  new  State  in  the  wilderness. 
An  appraisement  law  is  one  which  provided  that 
in  case  of  an  execution  being  levied  upon  the 
real,  and  in  some  cases  the  personal  estate  of 
the  debtor,  he  was  authorized  to  demand  of  the 
proper  officer  that  it  should  be  appraised.  This 
meant  to  have  a  certain  value  put  upon  it,  and 
the  method  by  which  this  should  be  done  —  gen- 
erally by  two  or  three  disinterested  persons  — 
was  pointed  out.  If  upon  being  brought  to  a 
sale  the  property  should  not  bring  two-thirds,  or 
three-fourths,  or  one-half,  or  whatever  propor- 
tion the  legislature  might  determine,  of  its 
appraised  value,  there  would  be  no  sale.  In 
other  words,  the  bids  for  the  property  must 
approximate  within  a  certain  limit  of  the  value 

1  Bronson  v.  Kiiizie,  1  How.  311 ;  Howard  v.  Bugbee,  24  How. 
461 J  McCracken  v.  Haywai'd,  2  How.  G08. 


550  LECTURES    ON    CONSTITUTIONAL   LAW. 

Lecture  XI.       put  upon  it   in   the   manner  prescribed  by  the 
Appraisement       g^^tute,  or  clsc  it  coulcl  not  be  sold.     It  will  be 

laws.  ' 

seen  that  this  might  effectually  prevent  the 
creditor  from  ever  realizing  his  debt,  especially 
where  the  only  property  owned  by  the  debtor 
happened  to  be  real  estate.  It  might  be  so 
valued  that  the  creditor,  or  the  purchaser,  would 
have  to  pay  a  great  deal  more  than  it  was  worth 
if  he  bought  it.  Perhaps  nobody  else  will  buy 
it.  Perhaps  the  creditor  does  not  wish  to  buy 
it,  and  does  not  want  it.  He  may,  like  many 
men,  have  more  land  than  he  wants,  and  may 
not  wish  to  take  any  more  for  his  debt.  At 
any  rate  it  was  not  his  contract,  and  it  is  im- 
pairing its  obligation  whenever  one  of  these 
appraisement  laws  or  redemption  laws  interferes 
to  make  a  harder  rule  than  existed  at  the  time 
the  indebtedness  was  contracted,  so  that  the 
collection  of  the  debt  is  made  more  difficult  than 
it  otherwise  would  have  been, 
stay  laws.  There  is  still  another  class  of  statutes  belong- 

ing to  the  same  general  category,  known  as  the 
stay  laws.  Whenever  there  is  a  time  of  com- 
mercial and  financial  disturbance  prevailing, 
when  business  is  at  a  stand-still  and  there  is 
every  indication  of  a  panic,  when  people  are  in 
debt  and  property  is  low  in  value,  the  debtor  is 
very  apt  to  imagine  that,  if  he  can  get  an  exten- 
sion of  time,  he  will  be  enabled  to  realize  upon 
his  property  and  pay  his  indebtedness  without 
a  sacrifice.  This  idea  has  prompted  one  of  the 
most  frequent  attempts  on  the  part  of  the  State 
legislatures   to  aid  their  own  citizens  in  those 


IMPAIRMENT  OF  CONTRACTS.  551 

straits,  by  passing  stay  laws  which  were  obnox-  lecture  xi. 
ious  to  the  true  intent  and  meaning  of  this  ^^'^^  ^^^^" 
clause  of  the  Constitution.  These  were  laws  by 
which  it  was  provided  that  the  creditor  should 
not  have  an  execution  as  soon  as  judgment  was 
rendered,  or  within  the  time  that  the  law 
allowed  when  the  contract  was  made,  but  ex- 
tended the  time  or  stayed  the  execution,  as  it 
was  said,  for  months  and  sometimes  for  years. 

One  of  the  best  exemplifications  of  this  kind 
of  a  statute  was  one  which  was  passed  in  Ken- 
tucky about  1822,  during  a  period  of  great 
financial  distress  which  came  on  after  the  war 
with  Great  Britain.  That  State,  like  all  the 
others  at  that  time,  had  created  State  banks, 
which  furnished  the  only  circulating  medium 
the  country  then  had.  One  of  those  banks, 
chartered  by  the  State,  and  in  which  it  was  in- 
terested as  the  owner  of  a  large  portion  of  the 
stock,  was  called  the  Bank  of  the  Common- 
wealth of  Kentucky.  When  this  financial  crisis 
came  its  notes  began  to  depreciate  in  value ; 
they  went  down  to  fifty  cents  on  the  dollar,  and 
they  probably  would  have  gone  down  to  nothing 
if  the  State  had  not  been  interested  in  the  bank. 
They  remained  the  only  currency  in  circulation 
in  the  State.  Gold  and  silver  had  practically 
disappeared,  and  the  United  States  Bank  had 
not  yet  sent  out  its  branches.  At  this  juncture 
the  legislature  passed  a  statute  providing  that 
when  a  man  recovered  a  judgment,  if  the  debtor 
offered  to  pay  him  in  the  notes  of  the  Bank  of 
the  Commonwealth  at  par,  or  in  common  par- 


552  LECTURES    ON    CONSTITUTIONAL    LAW. 

lectdre  XI.       lance   at   their   face   value,   the   creditor  had   a 
Stay  laws.  right  to  take  them  or  to  refuse  them  ;  l^ut  if  "he 

refused  such  otfer  that  fact  was  to  be  entered 
upon  the  records  of  the  court  and  he  could 
have  no  execution  to  make  his  judgment  for 
two  years.  In  other  words,  it  was  a  stay  of 
execution  unless  the  creditor  would  accept  pay- 
ment in  money  or  notes  only  worth  fifty  cents 
on  the  dollar. 

The  passage  of  that  act  led  to  one  of  the  most 
remarkable  judicial  and  political  struggles  ever 
known  in  any  country,  but  which  it  will  be  im- 
possible to  discuss  in  detail  at  this  time.  It 
may  be  remarked,  however,  that  it  involved  two 
great  constitutional  questions,  the  substance  of 
which  may  be  briefly  stated. 

The  first  one  Avas  whether  that  stay  law  was 
forbidden  by  the  provision  of  the  Constitution 
we  are  now  considerino;.  A  case  involvincr  this 
question  came  before  the  Court  of  Appeals  of 
Kentucky,  which  held  that  the  statute  did  im- 
pair the  obligation  of  contracts,  and  was,  there- 
fore, void  as  to  those  in  existence  when  it  was 
passed.  It  thus  nullified  the  law  which  had 
been  passed  under  the  pressure  of  public  clamor, 
and  was  intended  as  a  means  of  relief  to  many 
who  could  not  meet  their  obligations  or  keep 
their  contracts.  But  not  to  be  thus  thwarted, 
the  legislature  of  the  State  met  immediately 
after  this  decision  and  passed  a  statute  abolish- 
ing that  Court  of  Appeals  and  creating  another 
in  its  stead.  Now  the  Constitution  of  the  State 
of   Kentucky  is    almost    identical   in   language 


IMPAIRMENT    OF    CONTRACTS.  553 

with  that  of  the  United  States,  so  far  at  least  as  lecture  xi. 
regards  the  power  of  the  legishiture  over  the  ^^'^^  ^*^^' 
courts.  The  Federal  Constitution  says  that 
"the  judicial  power  of  the  United  States  shall 
be  vested  in  one  Supreme  Court,  and  in  such 
inferior  courts  as  the  Congress  may,  from  time 
to  time,  ordain  and  establish."  This  has  always 
been  held  by  good  constitutional  lawyers  to 
mean  that,  while  Congress  may  abolish  all  the 
inferior  courts,  may  change  them,  or  give  them 
different  names  and  jurisdictions,  yet  the  one 
Supreme  Court  of  the  United  States  it  cannot " 
abolish  or  change,  otherwise  than  by  adding  to 
its  members.  This  was  the  doctrine  laid  down 
by  the  old  Court  of  Appeals  of  Kentucky.  The 
Constitution  of  that  State  provided  tliat  there 
should  be  a  Court  of  Appeals,  and  such  inferior 
courts  as  the  legislature  might  from  time  to 
time  ordain.  This  Court  of  Appeals  held  that 
the  law  abolishing  it  was  unconstitutional ;  so 
they  sat  with  their  clerk,  their  marshal,  and 
other  officers,  in  their  own  room,  and  proceeded 
to  consider  all  business  that  came  before  them. 
In  pursuance,  however,  of  the  new  law,  the  gov- 
ernor of  the  State  appointed  another  set  of 
judges  as  a  new  Court  of  Appeals,  who  organ- 
ized, selected  a  clerk  and  marshal,  and  pro- 
ceeded to  decide  such  cases  as  were  brought 
before  them. 

This  was  the  serious  condition  of  affairs  that 
then  existed,  arising  out  of  the  determination  to 
enforce  this  stay  law  which  had  been  passed  by 
the  legislature  of  the  State.     The  matter  then 


554 


LECTURES    ON    CONSTITUTIONAL   LAW. 


Lecture  XI. 
Stay  laws. 


What  is  a  con- 
tract? 


came  before  the  people  at  the  next  election  for 
members  of  the  legislature ;  and,  with  some  of 
the  most  remarkable  exhibitions  of  learning  and 
ability  that  any  young  State  ever  had,  these 
subjects  were  canvassed  on  the  stump,  in  the 
papers,  by  pamphlets  and  magazines,  and  the 
whole  country  was  aroused  by  them,  involving 
as  they  did  not  only  the  validity  of  the  decision 
of  the  Court  of  Appeals,  as  well  as  its  very 
existence,  but  the  upholding  of  this  important 
stay  law.  First  it  was  relief  and  anti-relief,  and 
then  it  was  new-court  and  old-court.  At  the 
ensuing  election,  by  a  very  considerable  major- 
ity, men  were  elected  who  decided  for  the  old 
court,  and  left  it  in  the  full  possession  of  all  its 
powers ;  so  that  was  the  end  of  stay  laws  in  the 
State  of  Kentucky. 

In  the  consideration  of  this  clause  of  the  Con- 
stitution there  remains  only  the  principal  word 
of  the  sentence,  the  "contract"  itself.  It  is 
probably  unnecessary  to  undertake  here  to  define 
a  contract  in  general,  or  even  what  it  is  within 
the  meaning  of  that  instrument.  The  general 
subject  is  one  of  the  most  important  in  the 
study  of  the  law,  and  about  which  no  true 
lawyer  can  ever  know  too  much.  The  recent 
work  on  this  subject  by  Wharton,  in  two  vol- 
umes, is,  I  am  inclined  to  think,  the  best  and 
most  philosophical,  as  well  as  the  one  best  suited 
to  the  American  lawyer  and  student,  of  any 
treatise  on  contracts  with  which  I  am  acquainted. 
He  gives  several  pages  to  the  different  defini- 
tions to  be  found  in  the  laws  and  treatises  of 


IMPAIRMENT  OF  CONTEACTS.  555 


continental    Europe,   the   ancient    Roman   law,  lecture  xi. 


What  is  a  con- 
tract? 


and  in  the  reported  decisions  of  the  courts  of 
this  country.  A  reference  to  that  treatise, 
therefore,  will  be  more  satisfactory  than  any 
brief  definition  which  might  be  attempted  here, 
and  will  give  also  many  appropriate  citations 
for  further  investigation. 

It  has  seemed  probable  to  many  judges  and 
lawyers  who  have  considered  this  clause  of  the 
Constitution  that  it  was  not  designed  by  the 
framers  of  that  instrument  to  do  anything  more 
than  protect  private  contracts,  those  between 
individuals,  and  those  between  individuals  and 
private  corporations,  that  is,  not  municipal  cor- 
porations, but  those  organized  for  purposes  of 
profit ;  and  if  it  were  now  an  original  question, 
it  is  by  no  means  certain  but  that  this  would 
be  held  to  be  a  sound  view  of  it.  But  those  emi- 
nent men  who  at  an  early  day  had  the  duty  of 
defining  the  meaning  of  this  provision  thought 
otherwise.  They  held  it  to  apply  very  largely 
to  contracts  made  by  a  State,  and  not  only  to 
those  made  by  it,  but  to  contracts  arising  out  of 
State  statutes  and  legislation. 

The   first   case^   on    this    subject    before   the  f'letcfier  r.  Peck, 
Supreme  Court  of  the  United  States  came  from  ' 

Georgia.  That  State,  under  an  act  passed  in 
1795,  sold  to  a  number  of  individuals  a  large 
tract  of  the  unappropriated  public  lands  within 
its  limits,  and  which  belonged  to  it.  The  pur- 
chasers came  forward,  paid  their   money,  and 

1  Fletcher  v.  Peck,  6  Cranch,  87. 


556 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  XL  took  the  patent,  whicli  the  State  authorized, 
e'cranch^'s?^^^^'  ^^^^^  ^^^^  proper  officer.  A  few  years  afterward 
it  was  alleged  that  the  passage  of  the  statute 
was  obtained  by  fraud  and  misrepresentation  on 
the  part  of  those  purchasers,  and  the  legislature 
passed  an  act  annulling  that  contract,  setting 
aside  the  sealed  conveyance,  and  authorizing  the 
sale  of  the  same  land  to  other  individuals,  which 
was  accordingly  done.  These  two  parties,  each 
with  a  title,  or  a  supposed  title,  from  the  State 
of  Georgia,  came  before  the  Supreme  Court  of 
the  United  States  in  the  ordinary  way.  The 
first  purchasers  of  the  land  in  question  claimed 
that  the  second  statute  was  a  law  impairing  the 
obligation  of  their  contract  with  the  State  of 
Georgia,  and  the  Supreme  Court,  in  a  very 
learned  opinion  by  Chief  Justice  Marshall,  held 
that  it  was  so ;  that  the  State  was  bound  by 
its  contracts  as  well  as  an  individual,  and  could 
no  more  impair  its  obligation  by  a  subsequent 
statute  than  an  individual  could  defeat  his  sale 
of  property  by  a  declaration  that  the  sale  was 
invalid.  That,  however,  was  a  case  very  fairly 
in  the  nature  of  a  bargain.  The  State  had  sold 
the  land,  got  the  money  and  made  a  deed  which 
the  grantees  held  so  that  it  was  not  going  very 
far  to  say  that  this  was  a  case  of  bargain  and 
sale.  It  was  an  ordinary  contract,  and  one  of 
the  parties  to  it  could  not  pronounce  it  invalid 
even  though  that  party  was  a  sovereign  State. 
Dartmouth  Col-  In  a  subscqucut  case^  the  State  of  New 
mearSs^         Hampshire  undertook  to  turn  out  the.professors, 

^  Dartmouth  College  Case,  5  Wheat.  518. 


IMPAIRMENT    OF    CONTRACTS.  557 

faculty,  and  trustees  of  Dartmouth  College  by  lecture  xi. 
an  act  of  the  leo;islature  and  substitute  others  [^'^""'""^•' ^o'- 

o  l(!Ue  Case,  5 

in  their  stead.  The  old  trustees  resisted,  and  wheat.  5i8. 
the  case  came  to  the  Supreme  Court  of  the 
United  States  on  the  proposition  that  that  act 
of  the  legislature  was  invalid  as  impairing  the 
obligation  of  a  contract.  The  contract  which 
they  set  up  was  that,  in  the  colonial  times,  the 
king  by  a  royal  charter  had  invested  the  col- 
lege with  certain  rights  and  privileges,  which 
had  been  accepted.  It  was  held  that  m  cases 
where  a  charter  was  granted  to  a  corporation, 
even  where  it  was  organized  for  educational 
purposes,  on  the  faith  of  which  private  citizens 
had  invested  money,  which  charter  had  been 
accepted  by  the  corporation  and  its  trustees,  it 
constituted  a  contract  between  the  State  and 
the  trustees,  or  other  parties,  which  was  within 
the  protection  of  this  clause  of  the  Constitution, 
and  could  not  be  impaired  by  a  subsequent  stat- 
ute of  the  State. 

That  decision  took  the  country  a  good  deal 
by  surprise,  because  it  meant  that,  whenever  a 
corporation  is  chartered  b}^  a  statute  or  act  of 
the  legislature,  or  by  the  crown,  and  certain 
rights  are  granted  to  it  and  accepted,  on  which 
it  acts,  that  constitutes  a  contract  directly  be- 
tween the  State  and  the  corporation  which  the 
State  cannot  repeal.  It  is  an  interesting  chap- 
ter in  the  legal  history  of  this  country  to  con- 
sider how,  after  this  decision  was  rendered,  the 
States  sought  to,  and  did  practically,  avoid  the 
worst  effects  of  it,  by  putting  into  all  statutes 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  XI. 
Dartmouth  Col- 
lejje  Case,  5 
Wheat.  518. 


Classification  of 
contracts  which 
have  been  the 
subject  of  adju- 
dication. 


Charters  of  incor- 
poration. 


granting  corporate  privileges  and  powers,  the 
condition  that  the  charter  should  be  subject  to 
amendment,  alteration,  or  repeal  at  the  pleasure 
of  the  legislature.  This,  of  course,  entered  into 
and  became  a  part  of  the  contract,  which  was 
not,  therefore,  violated  or  impaired  by  a  subse- 
quent statute  abolishing  or  changing  the  cor- 
poration. 

Having  thus  considered  the  different  parts  of 
this  important  clause  of  the  Constitution,  let  us 
briefly  look  at  the  class  of  contracts  which  have 
been  most  frequently  brought  before  the  courts 
on  the  allegation  that  subsequent  statutes  have 
impaired  their  obligation.  These  are  not  gener- 
ally private  contracts.  The  nature,  character, 
and  general  principles  governing  those  between 
man  and  man  have  come  to  be  so  well  under- 
stood, as  well  as  what  it  is  to  impair  their 
obligation,  that  they  are  now  somewhat  rarely 
met  with  in  the  court  of  last  resort.  It  is  still 
rarer  that  any  State  legislature  attempts  to 
impair  or  change  the  nature  of  a  private  con- 
tract. Most  of  the  cases  that  now  come  to  the 
Supreme  Court  of  the  United  States,  involving  a 
consideration  of  this  subject,  are  those  in  which 
a  State  has  sought  to  get  rid  of  a  promise  or 
statute  or  grant  made  by  it,  and  which  other 
parties  have  accepted,  and  where  it  has  sought 
to  do  this  by  some  new  statute  which  impairs 
the  obligation  of  that  contract. 

A  large  portion  of  the  contracts  which  the 
States  have  sought  to  modify,  alter,  or  impair, 
have  related  to  the  creation  of  corporations  and 


IMPAIRMENT  OF  CONTRACTS.  559 


grants  to  them  of  certain  powers.     In  this  cate-  lkcture  xi. 

Charters 
po  ration. 


gory  are  included  raih^oad,  transportation,  insur-    '^""'^'"^  °  ^^^^'' 


ance,  and  other  companies.  All  of  these  depend 
for  their  existence  on  State  statutes,  and  the 
States  have  often  endeavored  to  get  some  relief 
against  what  they  have  said  and  done,  by  impair- 
ing the  obligation  of  the  contract  they  have 
made  with  the  incorporators. 

Another  class  of  cases  more  frequently  brought  Exemptions  from 
before  the  Supreme  Court  now  than  any  other  is  *^^^*'"°- 
that  of  contracts  made  by  some  State  in  regard 
to  taxation.  The  reason  for  this  is  very  obvious. 
The  burden  of  taxation  has  grown  much  greater 
since  the  war,  and  is  frequently  very  heavy.  An 
immense  amount  of  money  has  been  collected 
to  pay  off  the  public  debt,  which  is  being  rapidly 
decreased.  The  obligations  which  have  been 
incurred  by  States,  counties,  and  towns,  and 
other  municipal  corporations,  by  borrowing 
money  both  in  Europe  and  the  United  States, 
render  the  taxation  necessary  to  meet  the  inter- 
est and  principal  upon  this  enormous  indebted- 
ness, a  heavy  burden  upon  everybody  who  has 
property  upon  which  it  can  be  levied.  It  is  but 
natural  that  those  wdiose  taxes  are  large  enough 
to  make  it  an  object  for  them  to  fight  about  it, 
litigate,  and  try  to  avoid  their  payment  as  long 
as  possible. 

In  many  cases  the  States  have  passed  statutes 
favoring  certain  parties  in  regard  to  taxation. 
In  the  early  days  of  the  West,  when  there  was 
but  little  money  in  circulation,  the  States  fre- 
quently passed  laws  chartering  banks  and  other 


560  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  XI.       Corporations,  because  tliey  were  anxious  to  get 
Exemptious  from  ^j^^  capital  wliicli  would  naturallv  come  to  tliem 

taxation.  ^  ^ 

from  the  East  or  Europe  for  investment,  and  for 
the  purposes  of  business  in  that  country.  So  in 
granting  the  charters  they  often  offered  induce- 
ments to  capitalists  in  the  way  of  relief  from 
taxation.  Some  of  the  States  excepted  banking 
houses  and  bank  bills :  in  some  cases  this  was 
for  a  period  of  years,  in  some  the  circulation 
alone  was  excepted,  in  others  the  stock  alone, 
and  in  still  others  the  capital  of  the  bank  as  dis- 
tinguished from  the  shares  of  the  stockholders. 
Innumerable  statutes  of  this  character  were 
passed  to  induce  people  to  start  banks.  But 
after  a  while  the  banks  became  rich,  the  com- 
munities were  in  a  flourishing  condition,  and 
the  people  saw  that  a  very  large  amount  of  cap- 
ital in  this  way  escaped  taxation.  The  legisla- 
tures that  chartered  these  banks  had  long  since 
passed  away,  and  the  new  ones,  who  did  not 
know  them,  passed  laws  that  they  should  be 
taxed.  Of  course  those  whose  privileges  were 
infringed  would  not  submit  without  a  struggle. 
So  these  questions  were  made  the  subject  of  liti- 
gation, and  there  are  a  number  of  cases  in  the 
Supreme  Court  of  the  United  States  in  which 
they  have  been  discussed. 

Capitalists  knew  very  well  what  they  were 
doing  when  they  contracted  with  a  State  under 
the  form  of  a  statute  that  they  should  not  be 
taxed  at  all,  or  only  a  certain  per  cent  and  no 
more.  When  it  came  to  exceed  that  in  the 
community  they  rebelled,  said  it  was  unjust,  and 


IMPAIRMENT  OF  CONTRACTS.  561 

tried  to  escape  its  payment  by  every  means  in  lecture  xi. 
their   power.       Of    course    those    who    did    not  ^''*^'"J"'""' ^'■""' 

^  ^  ^  taxation. 

share  in  these  privileges  claimed  that  everybody 
in  the  community  should  be  treated  alike,  and 
insisted  that  these  exceptions  were  not  valid. 
Indeed,  it  may  be  generally  said  that  every 
total  or  limited  exemption  from  taxation,  either 
for  all  time  or  for  a  limited  period,  some  later 
legislature  has  by  subsequent  legislation  at- 
tempted to  break  down. 

The  first  question  that  arises  in  regard  to  the 
subject  is,  had  the  States  the  constitutional 
power  to  pass  the  first  statute  of  exemption  ? 
Has  a  legislature  sitting  in  the  State  of  Penn- 
sylvania or  Maryland  to-day  a  right  to  bargain 
with  a  taxpayer  that  he  shall  never  pay  a  tax, 
or  that  he  shall  not  be  taxed  for  fifty  years  at  a 
higher  rate  than  one  per  cent  on  his  business  or 
property  ?  Can  it  in  that  manner  forestall  a 
succeeding  legislature,  elected  in  that  State,  and 
bind  their  hands  so  that  they  shall  not  be  able 
to  impose  a  tax  which  shall  be  equal  on  every- 
body, or  increase  the  taxes  of  these  parties  ? 

There  are  some  general  principles  relative  to 
this  subject  which  I  deem  it  proper  here  to  make 
the  subject  of  brief  remark.  The  power  of  tax- 
ation is  not  given  for  the  private  benefit  of  any- 
body. Taxation  is,  in  this  country  and  in  all 
civilized  countries,  the  lifeblood  of  the  existence 
of  the  government.  Without  it  there  could  be 
no  officers  paid,  no  legislature  elected,  no  laws 
enforced.  When  you  undei'take  to  cripple  and 
tie  up  this  power  of  taxation  in  an  organized 


562  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  XI.       government,  it  is  equivalent  to  putting  a  ligature 

Exemptions  from   .^^,^^^^^^  ^^  ^^,^^         ^£    ^  y^^-         ^^. 
taxation.  '^  . 

A  legislature  There  are  a  great  many  intelligent  and  able 

cannot  limit  the    j^^^^y^^^g  [^  ^\^[^  couutrv,  and  there  has  always 

taxing  power  of  •>  -^  ^  ^ 

its  successor.  been  in  the  Supreme  Court  of  the  United  States 
more  than  one  justice,  who  have  thought  it  not 
within  the  constitutional  power  of  one  legisla- 
ture to  limit  the  taxing  power  of  a  succeeding 
one.  I  have  no  hesitation  in  saying  that  I  am 
one  of  those.  As  late  as  1869  Chief  Justice 
Chase,  Justice  Field,  and  myself  made  a  dissent 
on  that  subject.^ 

There  has  never  been  a  time  in  the  history 
of  the  court  when  there  was  not  a  dissenting 
justice  who  did  not  believe  in  the  validity  of 
that  class  of  subsequent  legislation ;  but  the 
majority  of  the  court  has  always  held  that 
these  contracts  were  within  the  power  of  the 
legislatures  to  make,  were  binding  on  them  as 
well  as  the  State,  and  that,  when  subsequent 
legislatures  sought  to  impair  them,  they  were 
protected  by  the  clause  of  the  Constitution 
which  we  have  been  considering. 

The  theory  upon  which  these  decisions  have 
been  based  is  that  the  State  is  a  corporation,  and 
that  all  statutes  passed  by  it  which  invite  persons 
to  invest  their  capital  upon  the  promise  of  cer- 
tain privileges  granted,  which  are  formally  ac- 
cepted by  the  grantees  and  acted  upon,  constitute 
a  contract  between'  the  State  and  those  parties. 
I  concur  with  this  statement  of  a  general  prin- 

1  Wasldnfjton  University  v.  Rouse,  8  Wall.  439,  441. 


IMPAIRMENT  OF  CONTHACTS.  5G3 

ciple   when    it  is  applied  to  anything  which  a  lkcture  xi. 
State  may  properly  do  ;  that  is  to  say,  that  any  ^  J,^fof ||I"i7tho 
contract  about  a   matter  which  is  within  theuMaxing  power  of 

• ,  1  •        ,  1  •  .  T      1        T  1  its  successor. 

power  comes  withm  this  reasonmg  and  should 
be  protected.  But  where  the  power  is  wanting, 
as  it  is  above  intimated  is  my  opinion  in  regard 
to  limiting  future  taxation,  of  course  this  argu- 
ment would  not  apply. 

Perhaps  I  cannot  do  better  at  this  point  than 
to  quote  from  the  opinion  that  I  had  the  honor 
to  deliver  in  regard  to  this  subject  of  taxation 
in  its  relations  to  the  clause  of  the  Constitution 
now  under  discussion.  The  following  language 
was  there  used  :  — 

"  As  we  have  already  said,  since  the  legisla- 
ture which  passed  the  act  of  1865  had  the  power 
to  make  a  contract  which  should  not  be  subject 
to  repeal  or  modification  by  one  of  the  parties  to 
it  without  the  consent  of  the  other,  the  main 
question  here  is,  did  they  intend  to  make  such  a 
contract  ? 

"  The  principal  function  of  a  legislative  body 
is  not  to  make  contracts,  but  to  make  laws. 
These  laws  are  put  into  a  form  which,  in  all 
countries  using  the  English  language,  and  in- 
heriting the  English  common  law,  is  called  a 
statute. 

"  Unless  forbidden  by  some  exceptional  con- 
stitutional provision,  the  same  authority  which 
can  make  a  law  can  repeal  it.  The  Constitution 
of  the  United  States  has  imposed  such  a  limita- 
tion upon  the  legislative  power  of  all  the  States, 
by  declaring  that  no  State  shall  pass  any  law 


564 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  XI. 
A  legislature 
cauiiot  limit  the 
taxing  power  of 
its  successor. 


impairing  the  obligation  of  a  contract.  The 
frequency  with  which  this  court  has  been  called 
on  to  declare  State  laws  void,  because  they  do 
impair  the  obligation  of  contracts,  shpws  how 
very  important  and  far  reaching  that  provision  is. 

"  It  may  safely  be  said  that  in  far  the  larger 
number  of  cases  brought  to  this  court  under  that 
clause  of  the  Constitution,  the  question  has  been 
as  to  the  existence  and  nature  of  the  contract, 
and  not  the  construction  of  the  law  which  is  sup- 
posed to  impair  it ;  and  the  greatest  trouble  we 
have  had  on  this  point  has  been  in  regard  to  what 
may  be  called  legislative  contracts,  —  contracts 
found  in  statute  laws  of  the  State,  if  they  existed 
at  all.  It  has  become  the  established  law  of  this 
court  that  a  legislative  enactment,  in  the  ordinary 
form  of  a  statute,  may  contain  provisions  which, 
when  accepted  as  the  basis  of  action  by  individ- 
uals or  corporations,  become  contracts  between 
them  and  the  State  within  the  protection  of  the 
clause  referred  to  of  the  Federal  Constitution. 

"  The  difficulty  in  this  class  of  cases  has 
always  been  to  distinguish  what  is  intended  by 
the  legislature  to  be  an  exercise  of  its  ordinary 
legislative  function  in  making  laws,  which,  like 
other  laws,  are  subject  to  its  full  control  by 
future  amendments  and  repeals,  from  what  is 
intended  to  become  a  contract  between  the  State 
and  other  parties  wlien  the  terms  of  the  statute 
have  been  accepted  and  acted  upon  by  those 
parties.  This  has  always  been  a  very  nice 
point ;  and,  when  the  supposed  contract  exists 
only  in  the  form  of  a  general  statute,  doubts 


IMPAIRMENT    OF    CONTRACTS.  5G5 

still  recur,  after  all  our  decisions  on  that  class  of  lecture  xi. 
questions.  ^  ie,isiat,u-e 

^  eaniidt  limit  tlie 

''  These  doubts  are  increased  when  the  terms  taxing  power  of 
of  the  statute  relate  to  a  matter  which  is  in  its 
essential  nature  one  of  exclusive  legislative  cog- 
nizance, and  which  at  the  same  time  requires 
money  or  labor  to  be  expended  Ijy  individuals  or 
corporations.  In  such  cases  the  legislature  may 
be  supposed  to  be  merely  exercising  its  power  of 
regulating  the  burdens  which  are  to  be  borne 
for  the  public  service,  m  which  case  it  could  be 
modified  from  time  to  time  as  lesrislative  discre- 
tion  might  determine ;  or  it  might  be  a  contract 
founded  on  a  fair  consideration  moving  from  the 
party  concerned  to  the  State,  and  which  in  that 
case  would  be  beyond  the  power  of  the  State  to 
impair.  Statutes  fixing  the  taxes  to  be  levied  on 
corporations,  partake  in  a  striking  manner  of  this 
dual  character,  and  require  for  their  construction 
a  critical  examination  of  their  terms,  and  of  the 
circumstances  under  which  they  are  created. 

"  The  writer  of  this  opinion  has  always  be- 
lieved, and  believes  now,  that  one  legislature  of 
a  State  has  no  power  to  bargain  away  the  right 
of  any  succeeding  legislature  to  levy  taxes  in  as 
full  a  manner  as  the  Constitution  will  permit. 
But,  so  long  as  the  majority  of  this  court  adhere 
to  the  contrary  doctrine,  he  must,  when  the 
question  arises,  join  w^ith  the  other  judges  in 
considering  whether  such  a  contract  has  been 
made."  ^ 

1  New  Jersey  v.  Yard,  95  U.  S.  104,  113,  114,  115. 


NOTES  UPON  LECTURE   XL 

Lecture  XI.  This  lecture,  like  the  lecture  upon  the  Regu- 

impairmentof      j^^-^^   ^f    Commerce,    was    evidently   prepared 

contracts.  '  c/      i       r 

some  years  ago,  and  has  not  been  brought 
down  by  incorporating  into  it  the  later  decis- 
ions. The  latest  case  cited  in  it  is  from  105 
U.  S.  So  far  as  it  comes  it  is  thorough ;  and 
nothing  is  left  for  the  editor  to  do  except  to 
take  up  the  Reports  at  volume  106.  and  note 
the  more  important  cases  from  that  time  on  to 
the  close  of  volume  140. 

In  deciding  whether  a  State  statute  of  incor- 
poration created  a  contract,  and  whether  a  sub- 
sequent statute  of  the  State,  as  construed  by 
its  courts,  impaired  that  contract,  the  Supreme 
Court  is  not  governed  by  previous  decisions  of 
the  States,  unless  they  are  so  firmly  established 
as  to  have  become  a  rule  of  property.^ 

The  right  to  demand  reimbursement  from  a 
municipal  corporation  for  damages  caused  by  a 
mob  is  not  founded  on  contract ;  and  the  fact 
that  a  statutory  right  to  demand  such  reim- 
bursement has  passed  into  a  judgment  does  not 
convert  the  obligation  into  such  a  contract  as  is 
contemplated  in  the  provision  in  the  Constitu- 

1  Louisville  &  Nashville  Railroad  v.  Palmes,  109  U.  S.  244. 
566 


NOTES    UPON    LECTURE    XI.  56' 

tion  that  no  State  shall  pass  any  law  impairing  lectuke  xi. 
the  oblio-ation  of  contracts.     The  term  contract,  i^P^i'-™^^^ «' 

o  '  contracts. 

as  used  in  the  Constitution,  signifies  the  agree- 
riient  of  two  or  more  minds,  for  considerations 
proceeding  from  one  to  the  other,  to  do  or  not 
to  do  certain  acts.^ 

When  a  contract  is  made  with  a  municipal 
corporation  upon  the  faith  that  taxes  will  be 
levied,  legislation  repealing  or  modifying  the 
taxing  power  of  the  corporation,  so  as  to  deprive 
the  holder  of  the  contract  of  all  adequate  and 
efficacious  remedy,  is  within  the  inhibition  of 
the  Constitution.  A  judgment  creditor  of  such 
a  corporation,  entitled  by  his  contract  to  be  paid 
out  of  specific  tax  levies,  is  further  entitled,  in 
mandanms  proceedings,  to  a  writ  ordering  the 
levy  and  collection  of  a  sufficient  tax  to  pay  his 
judgment." 

The  power  of  a  State  legislature  to  make  a 
contract  which,  under  the  Constitution,  cannot 
be   modified   or  abrogated,  does   not  extend  to  , 

subjects  aff^ecting  public  health  or  public  morals.^ 

The  Funding  Act  of  March  30,  1871,  of "  the 
State  of  Virginia,  and  the  issue  of  coupon  bonds 
under  it,  constituted  a  valid  contract  between 
the  State  and  the  holders  of  the  coupons  that 
the  coupons  should  be  receivable  at  and  after 
maturity  for  all  taxes,  debts,  dues,  and  demands 
due  the  State,  which  the  legislature  of  Virginia 


1  Louisiana  v.  Mayor  of  New  Orleans,  109  U.  S.  285. 

2  Louisiana  ox  rcl.  Nelson  v.  St.  Martin's  Parish,  111  U.  S.  716. 
^  Butchers''    Union   Co.  v.    Crescent  City  Live  Stock  Co.,  Ill 

U.  S.  746. 


568  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  XI.       was  not  at  liberty  to  rescind  or  modify  without 

Impairment  of         ^j^^  ^^^^^^  ^^  ^j^^  hoMerS  of    tlie   COUOOnS.^ 
contracts.  ^ 

When  a  statute  attaches  a  fixed  compensation 
to  a  public  office  during  tlie  whole  term  of  ser- 
vice of  a  person  legally  filling  the  office  and 
performing  the  duties  thereof,  a  complete,  im- 
plied obligation  arises  to  pay  for  the  services  at 
the  fixed  rate,  which  can  be  enforced  by  the 
remedies  which  the  law  then  gives ;  and,  as 
the  prohibition  of  the  Constitution  against  State 
laws  impairing  the  obligations  of  contracts  applies 
to  implied  contracts,  it  is  not  within  the  power 
of  the  State,  by  a  change  in  its  Constitution,  to 
take  away  existing  powers  of  taxation  so  as  to 
deprive  the  incumbent  of  the  means  of  collecting 
his  salary  then  earned.^ 

The  remedy  subsisting  in  a  State  when  and 
where  a  contract  is  made  and  is  to  be  performed 
is  a  part  of  its  obligation.  Any  subsequent 
statute  of  the  State  which  so  affects  that  remedy 
as  substantially  to  impair  and  lessen  the  value 
of  the  contract  is  forbidden  by  the  Constitution, 
and  is  void.  When  it  is  a  material  part  of  a 
contract  between  a  numicipal  corporation  and 
the  holders  of  its  bonds  that  the  creditor  should 
always  have  the  right  to  a  special  tax,  to  be 
levied  and  collected  under  laws  then  in  force,  in 
the  same  manner  as  county  taxes  at  the  same 
time  might  be  levied,  it  is  not  within  the  power 


1  Virginia  Coripon  Canes,  114  U.  S.  269.  See  also  McGuhey  v. 
Virginia,  135  U.  S.  062  ;  Hncless  v.  Childrey,  1.35  U.  S.  709  ;  and 
Vashon  V.  Greenlww,  V^^^  U.  S.  713. 

^  Fisk  V.  Jefferson  Police  Jurij,  116  U.  S.   131. 


NOTES    UPON    LECTUKE    XI.  569 

of  the  legislature  to  repeal  the  existing  laws,  lectukk  xi. 
and  substitute  for  them  statutes  reo-ulatinii;  the  ^"^P'"'"'"entof 

"        ^       o  contracts. 

assessment  and  collection  of  such  taxes  in  a  way 
which  is  not  a  legal  equivalent.^ 

The  provision  in  the  Constitution  in  regard 
to  the  impairment  of  contracts  is  aimed  at  the 
legislative  power  of  the  State,  and  not  at  de- 
cisions of  its  courts,  or  acts  of  executive  or 
administrative  boards  or  officers,  or  doino-s  of 
corporations  or  individuals.  Hence  the  Supreme 
Court  has  no  jurisdiction  of  a  writ  of  error  to 
the  highest  court  of  a  State  on  the  ground  that 
the  obligation  of  a  contract  has  been  impaired, 
unless  some  legislative  act  of  the  State  is  upheld 
by  the  judgment  sought  to  be  reviewed.^ 

The  provision  in  the  Constitution  of  West 
Virginia  of  1872,  that  property  of  a  citizen  of 
the  State  should  not  ''  be  seized  or  sold  under 
final  process  issued  upon  judgments  or  decrees 
heretofore  rendered,  or  otherwise,  because  of 
any  act  done  according  to  the  usages  of  civilized 
warfare  in  the  prosecution  of  the  '  war  of  the 
rebellion '  by  either  of  the  parties  thereto,"  does 
not  impair  the  obligation  of  a  contract  Avithin 
the  meaning  of  the  Constitution  of  the  United 
States  when  applied  to  a  judgment  previously 
obtained,  founded  on  a  tort  committed  as  an  act 
of  public  war.^ 

The  exemption  of  a  railroad  corporation,  in- 

1  Seihert  v.  Lewis,  122  U.  S.  284. 

2  New  Orleans  Water  Works  v.  Louisiana  Sugar  Eefining  Co.,, 
125  U.  S.  18. 

2  Freeland  v.  Williams,  131  U.  S.  405. 


570  LECTURES   ON    CONSTITUTIONAL    LA.W. 

Lecture  XI.       corporated  by  a  State,  from  future  general  legis- 

Iinpairment  of        j^^-^^    ^f    ^j^^    C^^^^^     ^-^j^^j,   -^^   -^^  Constitlltioil  Or 
contracts.  -' 

by  an  act  of  its  legislature,  cannot  be  admitted 
to  exist,  unless  it  is  expressly  given,  or  unless 
it  follows  by  an  implication  equally  clear  with 
express  words. ^ 

The  fifteenth  section  of  the  act  of  the  legisla- 
ture of  New  York,  approved  June  6,  1885,  pro- 
vides that  no  action  or  special  proceeding  shall 
thereafter  be  maintained  against  the  city  of 
Brooklyn,  or  the  Registrar  of  Arrears  of  that 
city,  to  compel  the  execution  or  delivery  of  a 
lease  upon  any  sale  for  taxes,  assessments,  or 
water  rates,  made  more  than  eight  years  prior 
to  the  above  date,  unless  commenced  within  six 
months  after  that  date,  and  notice  thereof  filed 
in  the  office  of  the  Registrar  of  Arrears ;  also, 
that  that  officer  shall,  upon  the  expiration  of 
such  six  months,  cancel  in  his  office  all  sales 
made  more  than  eight  years  before  the  passage 
of  the  act,  upon  which  no  lease  had  been  given, 
and  no  action  commenced  and  notice  thereof 
filed,  within  the  period  limited  as  aforesaid,  and 
that  thereupon  the  lien  of  all  such  certificates  of 
purchase  should  cease  and  determine. 

On  these  facts  the  court  held  (1)  That  this 
section  was  not  repugnant  to  the  clause  of  the 
Constitution  of  the  United  States  forbidding  a 
State  to  pass  any  law  impairing  the  obligation 
of  contracts,  or  to  the  clause  declaring  that  no 
State  shall  deprive  any  person  of  property  with- 

*        1  Pennsylvania  Railroad  Co.  v.  Miller,  132  U.  S.  75. 


NOTES   UPON   LECTURE   XI.  571 

out  due  process  of  law;   (2)  That,  consistently  lecture  xi. 
with  those  clauses,  the  legislature  might  prescribe  ^'"p^^'"'"^"^  "^ 

,       ,  .  contracts. 

a  limitation  for  the  bringing  of  suits  where  none 
previously  existed,  as  well  as  shorten  the  time 
within  which  suits  to  enforce  existing  causes  of 
action  should  be  commenced,  provided,  in  each 
case,  a  reasonable  time,  taking  all  the  circum- 
stances into  consideration,  be  given  by  the  new 
law  for  the  commencement  of  suit  before  the 
bar  took  effect.^ 

On  December  12,  1883,  the  city  of  Sioux  City, 
in  Iowa,  by  ordinance,  conferred  on  a  street  rail- 
way company,  incorporated  December  6,  1883, 
under  the  general  laws  of  Iowa,  the  right  of 
operating  a  street  railway,  with  the  require- 
ment that  it  should  pave  the  street  between  the 
rails.  Subsequently,  under  an  act  of  1884,  the 
city,  by  ordinance,  required  the  company  also  to 
pave  the  street  for  one  foot  outside  of  the  rails, 
and  assessed  a  special  tax  against  it  for  the  cost 
of  the  paving  outside  of  the  rails.  On  these 
facts  it  was  held  that  there  was  no  contract 
between  the  company  and  the  State  or  the  city, 
the  obligation  of  which  was  impaired  by  the 
laying  of  the  tax :  and  that,  under  section  1090 
of  the  Code  of  Iowa,  which  was  in  force  when 
the  company  was  incorporated,  its  franchise  was 
subject  to  such  conditions  as  the  legislature 
should  thereafter  impose  as  necessary  for  the 
public  good.^ 


1  Wheeler  v.  Jackson,  137  U.  S.  245. 

2  Sioux  City  Street  Railway  Co.  v.  Sioux  City,  138  U.  S.  98/ 


572  LECTURES    ON    CONSTITUTIONAL    LAW. 

lf.cture  XI.  A  ferry  connecting  Wheeling  with  Wheeling 

IZrivcTs'"'"'  Isl^i^d  was  licensed  at  an  early  day  in  Virginia. 
Subsequently  a  general  law  of  that  State  pro- 
hibited the  courts  of  the  different  counties  from 
licensing  a  ferry  within  a  half  a  mile  in  a  direct 
line  from  an  established  ferry.  Still  later  the 
defendant  purchased  the  ferry  and  its  rights. 
On  these  facts  the  court  held  (1)  That  the  gen- 
eral law  of  Virginia  had  in  it  nothing  in  the 
nature  of  a  contract ;  (2)  That  the  transfer  of 
the  existing  rights  from  the  vendor  to  the  ven- 
dee added  nothing  to  them.^ 

An  executive  agency,  created  by  a  statute  of 
a  State  for  the  purpose  of  improving  public 
highways,  and  empowered  to  assess  the  cost  of 
its  improvements  upon  adjoining  lands,  and  to 
put  up  for  sale,  and  buy  in  for  a  term  of  years 
for  its  own  use,  any  such  lands  delinquent  in 
the  payment  of  the  assessment,  does  not,  by 
such  a  purchase,  acquire  a  contract  right  in  the 
land  so  bought  which  the  State  cannot  modify 
without  violating  the  provisions  of  the  Constitu- 
tion of  the  United  States.  Such  a  transaction 
is  matter  of  law  and  not  of  contract,  and  as  such 
is  not  open  to  constitutional  objections.  Even 
as  to  third  parties  an  assessment  is  not  a  con- 
tract in  the  sense  in  which  the  word  is  used  in 
the  Constitution  of  the  United  States.^ 


1  WJieeling  &  Belmont  Bridge  Co.  v.  Belmont  Bridge  Co.,  138 
U.  S.  287. 

2  I^ssex  Public  Road  Board  v.  Skinkle,  140  U.  S.  334. 


XII. 

LIMITATIONS    UPON    THE    POWERS    OF 
STATES.^ 


Article  I,  Section  8,  Paragraph  18.    The  Con-  Lecture  XII. 
gress  shall  have  power  .  .  . 

To  make  all  Laws  which  shall  be  necessary  and 
proper  for  carrying  into  Execution  the  foregoing 
Powers,  and  all  other  Powers  vested  by  this  Constitu- 
tion in  the  Government  of  the  United  States,  or  in 
any  Department  or  Officer  thereof. 

Article  I,  Section  10,  No  State  shall  enter  into 
any  Treaty,  Alliance,  or  Confederation ;  grant  Letters 
of  Marque  and  Reprisal  ;  coin  Money  ;  emit  Bills  of 
Credit;  make  any  Thing  but  gold  and  silver  Coin  a 
Tender  in  Payment  of  Debts  ;  pass  any  Bill  of  At- 
tainder, ex  post  facto  Law,  or  Law  impairing  the  Obli- 
gation of  Contracts,  or  grant  any  Title  of  Nobility. 

No  State  shall,  without  the  consent  of  the  Congress, 
lay  any  Imposts  or  Duties  on  Imports  or  Exports,  ex- 
cept what  may  be  absolutely  necessary  for  executing 
its  inspection  Laws :  and  the  net  Produce  of  all 
Duties  and  Imposts,  laid  by  any  State  on  Imports  or 
Exports,  shall  be  for  the  Use  of  the  Treasury  of  the 
United  States  ;  and  all  such  Laws  shall  be  subject  to 
the  Revision  and  Controul  of  the  Congress. 

No  State  shall,  without  the  Consent  of  Congress, 
lay  any  Duty  of  Tonnage,  keep  Troops,  or  Ships  of 
War  in  time  of  Peace,  enter  into  any  Agreement  or 
Compact  with  another  State,  or  with  a  foreign  Power, 
or  engage  in  "War,  unless  actually  invaded,  or  in  such 
imminent  Danger  as  will  not  admit  of  Delay. 

1  This  Lecture  was  Lecture  X  of  the  Lectures  delivered  before 
the  classes  of  the  University  Law  School. 

573 


574  LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  XII. 


Article  IX  of  ttie  Amendments.  The  enumera- 
tion in  the  Constitution,  of  certain  rights,  sliall  not  be 
construed  to  deny  or  disparage  otliers  retained  by  the 
people. 

Article  X  of  the  Amendments.  The  powers 
not  delegated  to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  States,  are  reserved  to  the 
State  respectively,  or  to  the  people.^ 

oenerai  consider-      The  Constitution  of  the  United  States  may 
ations.  i^g  looked  at  under  various   views,   and  many 

classifications  may  be  made  of  it,  all  of  which 
tend  to  give  clearer  ideas  of  its  scope  and  mean- 
ing. The  most  important  arrangement  and 
classification  of  its  contents  is  into  three  divi- 
sions, which  relate  to  the  legislative,  the  execu- 
tive, and  the  judicial  powers. 

I  have  considered  the  Second  and  Third  Arti- 
cles of  the  Constitution,  as  they  refer  to  the 
subjects  of  the  executive  and  the  judiciary. 
Another  classification  of  its  provisions  may  be 
profitably  made  into  first,  the  grants  of  powers 
to  the  Federal  Government ;  second,  the  limita- 
tions upon  the  powers  of  that  Government ;  and 
third,  the  limitations  upon  the  powers  of  the 
States.  In  order  to  enable  you  to  understand 
more  clearly  these  limitations,  it  is  necessary  to 
state  a  few  propositions  in  regard  to  tlie  general 
theory  of  the  constitutional  powers  of  the  Gov- 
ernment of  the  United  States. 


1  The  Thirteenth,  Fourteenth,  and  Fifteenth  Amendments  are 
also  bi'iefly  alluded  to  in  this  lecture  ;  but,  as  they  are  dismissed 
with  the  remark  that  they  are  "  too  important  to  be  considered  at 
the  close  of  a  lecture,"  they  are  not  placed  in  this  headnote.  In 
the  next,  and  concluding  paper,  they  are  treated  more  at  length, 
and  will  be  found  in  that  headnote. 


LIMITATIONS    UPON    TOWERS    OF    STATES.  G75 

As  a  general  rule,  governments  are  unlimited  lecture  xii. 
in  their  powers.     All  free  g;overnuients,  perliai)s  K^i^t'ons'^etween 

^  .  .  "'^  State  govern- 

all  other  governments,  are  entitled  in  some  shape  nients  and  the 

,1,11  J    ,  1  J  Uniteri  States. 

or  other,  to  make  laws,  and  to  repeal,  or  amend 
them.  This  is  called  the  legislative  power  of  the 
government.  There  are,  however,  in  the  United 
States,  two  sets  of  governments,  both  occupying 
a  part  of  the  domain  of  the  great  functions  of 
governments,  including  the  executive,  the  legis- 
lative, and  the  judicial  powers.  The  Govern- 
ment of  the  United  States  was  created  by  the 
voluntary  action  of  the  people  of  the  different 
States.  When  this  was  originally  done  there 
were  thirteen  States  whose  people  united  in 
forming  the  General  Government  called  the 
United  States  of  America.  In  doing  this  the 
States  parted  ^^ith  all  the  powers  of  government 
which  were  thought  necessary  to  establish  that 
of  the  United  States,  but  those  which  they  did 
not  thus  surrender  and  give  up  to  the  National 
Government,  were  retained  by  each  State  as  a 
part  of  its  own  system  of  political  power.  The 
powers  thus  ceded  to  the  United  States  and 
parted  with  by  the  several  States,  are  much  the 
smaller  part  of  the  general  functions  of  govern- 
ment of  civil  society,  and  it  resulted  that  all  the 
powers  not  conferred  upon  the  United  States 
were  to  remain,  and  did  remain,  with  the  States 
themselves.  This  purpose  was  so  important 
that  it  was  not  left  to  the  natural  inference 
arising  from  the  sources  of  its  powers  and  the 
manner  in  which  the  Constitution  was  framed, 
but  it  is  more  than  once  referred  to.  and  at  least 


576  LECTURES    ON    CONSTITUTIONAL    LAW. 

lectuke  XII.      once  expressly  stated  in   the  Constitution   and 
IJ'^'t'T"'''''''"  amendments  thereto.     The  eighteenth  chiiise  of 

the  State  govern-  ^         '-' 

ment  and  the  the  eighth  section  of  the  First  Article  of  the  Con- 
stitution closes  the  enumeration  of  the  powers 
conferred  upon  Congress  by  the  following  lan- 
guage:— 

"The  Congress  shall  have  power  ...  to 
make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing 
powers,  and  all  other  powers  vested  by  this  Con- 
stitution in  the  Government  of  the  United  States, 
or  in  any  department  or  officer  thereof." 

Articles  IX  and  X  of  the  first  set  of  amend- 
ments to  the  Constitution,  made  to  give  expres- 
sion to  the  opinion  of  those  who  were  jealous  of 
the  powers  of  the  Federal  Government,  still 
more  clearly  state  this  view. 

"Article  IX.  The  enumeration  in  the  Con- 
stitution of  certain  rights  shall  not  be  construed 
to  deny  or  disparage  others  retained  by  the 
people. 

"  Article  X.  The  powers  not  delegated  to 
the  United  States  by  the  Constitution,  nor  pro- 
hibited by  it  to  the  States,  are  reserved  to  the 
States  respectively,  or  to  the  people." 

Section  8  of  the  First  Article  is  devoted  to 
the  grant  of  powers  to  the  legislative  branch  of 
the  Government  of  the  United  States ;  section 
9  is  devoted  to  the  restrictions  upon  those 
powers,  and  section  10  to  express  limitations 
upon  the  'powers  of  the  States.  If  you  will 
take  the  trouble  to  compare  these  limitations 
upon  the  powers  of  the  States  with  those  upon 


LIMITATIONS    UPON    POWERS    OF    STATES.  577 

the  powers  of  the  Federal  Government  in  the  lectukk  xn. 
preceding   section,  you  will   see   tliat   in   niany  f^^'^^f;;;;'^^;;^;;;:^" 
instances    they   are   the    same,    and    of    course  ment  and  the 
where  that  is  the  case  they  forbid  entirely  the 
exercise  of  the  powers  thus  specified  l)y  either 
the  National  or  State   Governments.      Such   is 
the  case  in  reference  to  the  prohibition  against' 
granting    titles    of   nobility,   and    others  to   be 
found  in  both  sections. 

The  tenth  section,  to  which  I  more  especially  Limitations  upon 
invite  your  attention,  reads  as  follows  :  —  1^°  powers  of  the 

^    _  ^  States. 

"  Section  10.  No  State  shall  enter  into  any 
treaty,  alliance,  or  confederation  ;  grant  letters 
of  marque  and  reprisal ;  coin  money  ;  emit  bills 
of  credit ;  make  anything  but  gold  and  silver 
coin  a  tender  in  payment  of  debts ;  pass  any 
bill  of  attainder,  ex  post  facto  law,  or  law  impair- 
ing the  obligation  of  contracts,  or  grant  any 
title  of  nobility. 

"  No  State  shall  without  the  consent  of  Con- 
gress, lay  any  imposts  or  duties  on  imports  or  ex- 
ports, except  what  may  be  absolutely  necessary 
for  executing  its  inspection  laws  ;  and  the  net 
produce  of  all  duties  and  imposts,  laid  by  any 
State  on  imports  or  exports,  shall  be  for  the  use 
of  the  Treasury  of  the  United  States;  and  all  such 
laws  shall  be  subject  to  the  revision  and  control 
of  Congress. 

"  No  State  shall,  without  the  consent  of  Con- 
gress, lay  any  duty  of  tonnage,  keep  troops,  or 
ships  of  war,  in  time  of  peace,  enter  into  any 
agreement  or  compact  with  another  State,  or 
with  a  foreign  power,  or  engage  in  war,  unless 


578  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  XII.      actually  invaded,  or  in  such  imminent  danger, 

I  imitations  upon    .^^  ^^-n  ^^^^^  .^^^^^-^  ^f  deUlV." 

the  powors  ol  tlie  _  ^ 

States.  The  first  of  these  items  of  prohibition,  namely, 

Makiii";  treaties,  •       i  i   •  j.         i."  it  pi 

alliances,  etc.  agamst  making  treaties,  alliances,  or  conleder- 
ations,  granting  letters  of  marque  and  reprisal, 
and  coining  money,  are  directed  to  the  exercise 
t)f  powers  which  are  in  their  essential  nature 
appropriate  alone  to  the  sovereign  power  of  the 
State.  No  government  ought  to  have  the  power 
of  making  a  treaty,  or  alliance,  or  a  confeder- 
ation with  another  government,  unless  it  is  in 
such  a  position  of  independence,  and  in  full  pos- 
session of  all  the  faculties  which  will  enable  it 
to  keep  up  its  relations  with  other  independent 
governments  or  to  maintain  a  confederation  or 
alliance  with  other  sovereign  powers.  This  pro- 
hibition was  taken  in  substance  from  Article  VI 
of  the  Articles  of  Confederation. 

If  one  of  the  States  of  the  Union  could  have 
made  a  treaty  with  France  or  Great  Britain  in 
the  early  days  of  our  Government,  or  could  have 
entered  into  a  confederation  with  one  of  those 
powers,  it  is  very  obvious  tliat  the  Government 
of  the  American  Union  would  have  been  a  rope 
of  sand ;  temptations  would  have  been  offered 
by  other  nations  to  induce  one  or  more  of  the 
States  to  withdraw  from  the  Federal  Union, 
which  must  in  the  struggle  through  which  they 
passed  in  their  early  history  have  been  success- 
ful. Indeed,  during;  Washino;ton's  administra- 
tion,  constant  efforts  were  made  by  France  and 
by  Great  Britain  to  influence  the  conduct  of  our 
affairs  upon  the  idea  that  our  Government  was 


LIMITATIONS    UPON    POWERS    OF    STATES.  579 

too  weak  to  protect  itself,  and  that  it  would  be  lectike  xii. 
open  to   the   approaches  which    their   ambition  '"^'l^'^'''^  'reiUieB, 

^        ^  '^  ^  iilliauces,  etc. 

and  interest  induced  them  to  make.  The  late 
civil  war  also  presents  an  instance  where,  if  the 
States  which  attempted  to  secede  could,  in  the 
lawful  exercise  of  the  power  to  do  so,  have  made 
treaty  arrangements  or  articles  of  confederation 
with  other  powerful  States  of  Europe  before 
they  attempted  to  separate  themselves  from  the 
Union  of  the  States,  they  would  probably  have 
done  so  with  fatal  effect.  And  what  they  did 
in  the  way  of  an  allip.nce  among  themselves  in 
the  attempt  to  create  a  confederacy  between 
several  of  the  States  is  also  expressly  prohibited 
by  the  language  of  this  section  that  no  State 
shall,  without  the  consent  of  Congress,  "  enter 
into  any  agreement  with  another  State,  or  with 
a  foreign  power." 

It  is  also  provided  that  no  State  shall  grant  Letters  of  marque 
letters  of  marque  and  reprisal.  This  form  of  ^"  ""^J""'^'^- 
hostilities  against  a  people  and  its  government 
has  almost  passed  out  of  use  among  the  nations 
of  the  earth.  A  letter  of  marque  and  reprisal 
is  defined  in  the  following  terms :  "  A  commis- 
sion granted  by  the  Government  to  a  private 
individual,  to  take  the  property  of  a  foreign 
State,  or  of  the  citizens  or  subjects  of  such  State, 
as  a  reparation  for  an  injury  committed  by  such 
State,  its  citizens  or  subjects."  ^ 

It  was  a  mode  of  asserting  a  remedy  for  a 
supposed  injustice,  sometimes  in  the  absence  of 

^  Bouvier's  Law  Dictionary. 


580  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  XII.  actual  War,  and  frequently  in  the  midst  of  war, 
^d^rrriJd*"^"^^^  a  means  of  inducing  the  private  citizens  of 
other  nations  to  engage  in  the  spoliation  of  the 
enemy.  As  it  is  fairly  one  of  the  war  powers, 
and  as,  when  exercised  under  the  authority  of 
the  State  against  a  nation  with  whom  the 
United  States  was  not  at  war,  it  might,  and  al- 
most certainly  would,  lead  to  war  against  that 
State,  it  was  forbidden  to  the  States  to  exercise 
the  authority  to  issue  such  commissions.  It  is 
easy  to  be  seen  that  if  each  State  of  the  Union 
were  at  liberty  to  so  conduct  itself  toward  any 
of  the  foreign  nations  of  the  world  as  to  justify 
them  in  making  war  upon  that  State,  the 
Federal  Government  must  either  permit  such 
State  to  struggle  in  its  own  defence  as  best  it 
could,  or  to  be  overrun,  conquered,  and  subjected 
to  the  power  of  the  hostile  nation ;  or  else  it 
must  intervene  and  p'/otect  the  State.  This 
latter  alternative  would  leave  the  question  of 
peace  or  war  to  the  caprices  and  interests  of  a 
single  State,  a  war  which  must  involve  the 
whole  nation  for  the  benefit  of  that  State,  with- 
out any  control  on  the  part  of  the  nation  over 
the  causes  which  led  to  such  a  conflict.  Hence, 
while  the  eighth  section  of  this  Article  declares 
that  Congress  alone  shall  make  war,  the  tenth 
section,  which  we  are  now  considering,  declares 
not  only  that  a  State  shall  not  engage  in  war 
unless  actually  invaded,  but  to  prevent  the 
approach  to  such  a  condition  of  affairs  refuses 
to  the  State  the  right  to  grant  letters  of  marque 
and  reprisal. 


LIMITATIONS    UPON    POWERS    OF    STATES.  581 

So  also  in  regard  to  the  coining  of  money,  lecture  xii.  . 
which  by  this  chiuse  is  forbidden  to  tlie  States,  c<.i"i°««f  ">o°ey- 
and  which  by  another  chiuse  of  the  same  Article 
is  given  in  positive  terms  to  the  Congress  of  the 
United  States,  to  wit,  "  to  coin  money,  regulate 
the  value  thereof,  and  of  foreign  coins,"  This 
is  a  power,  the  exercise  of  which  was  in  past 
times  claimed  as  an  attribute  of  sovereignty  by 
all  the  semi-independent  principalities  of  Europe. 
It  is  a  sovereign  power,  and  for  wise  reasons  is 
expressly  denied  to  the  States. 

In  the  same  connection  and  for  the  same  rea-  Legal  tender, 
sons  the  States  are  forbidden  to  make  anything 
but  gold  or  silver  coin  a  tender  in  payment  of 
debts,  or  to  emit  bills  of  credit.  What  was 
meant  by  the  phrase  "bills  of  credit"  in  this  buis  of  credit, 
clause  of  the  Constitution  has  been  the  subject 
of  very  considerable  discussion.  The  constitu- 
tional meaning  of  the  phrase  was  perhaps  best 
defined  in  the  case  of  Craig  v.  State  of  Missouri, 
4  Pet.  410,  431.  In  the  opinion  of  the  court, 
delivered  by  Chief  Justice  Marshall,  he  asks, 
"  What  is  a  bill  of  credit  ?  What  did  the  Con- 
stitution mean  to  forbid  ? "  To  these  questions 
he  replies  in  the  following  language  :  "  In  its 
enlarged,  and  perhaps  its  literal  sense,  the  term 
^  bill  of  credit '  may  comprehend  any  instrument 
by  which  a  State  engages  to  pay  money  at  a 
future  day  ;  thus  including  a  certificate  given 
for  money  borrowed.  But  the  language  of  the 
Constitution  itself,  and  the  mischief  to  be  pre- 
vented, which  we  know  from  the  history  of  our 
country,  equally  limit  the  interpretation  of  the 


582  LECTURES    OX    CONSTITUTIONAL    LAW. 

Lecture  XII.  terms.  The  word  '  emit,'  is  never  employed  in 
Bills  of  credit,  describing  those  contracts  by  which  a  State 
binds  itself  to  pay  money  at  a  future  day  for 
services  actually  received,  or  for  money  bor- 
rowed for  present  use ;  nor  are  instruments  exe- 
cuted for  such  purposes,  in  common  language, 
denominated  '  bills  of  credit.'  To  '  emit  bills  of 
credit,'  conveys  to  the  mind  the  idea  of  issuing 
paper  intended  to  circulate  through  the  com- 
munity, for  its  ordinary  purposes,  as  money, 
which  paper  is  redeemable  at  a  future  day. 
This  is  the  sense  in  which  the  terms  have  been 
always  understood." 

He  then  goes  into  a  history  of  the  times  pre- 
vious to  and  during  the  revolution  in  regard 
to  the  excessive  issues  of  paper  money,  much  of 
which  was  never  redeemed,  and  shows  that  it 
was  the  prevention  of  this  evil  which  was  aimed 
at  by  this  constitutional  provision. 

Thus  far,  these  provisions  of  section  10  are 
not  among  the  classes  of  powers  expressly  for- 
bidden to  the  Federal  Government.  How  far 
that  Government  may  make  other  things  beside 
gold  and  silver  coin  a  tender  in  payment  of 
debts,  and  how  far  a  State  may  organize  bank- 
ing corporations  with  the  power  to  issue  circu- 
lating notes,  are  questions  of  very  great  interest, 
and  which  have  been  very  much  discussed,  with 
varying  opinions,  among  the  ablest  and  wisest 
statesmen  and  constitutional  lawyers  of  the 
country.  So  far  as  the  weight  of  judicial  de- 
cisions may  determine  these  questions,  especially 
the  decisions  of  the  Supreme  Court  of  the  United 


LIMITATIONS    UPON    POWERS    OF    STATES.  583 

States,  it  may  be  said  to  be  settled  that  the  lkctitre  xii. 
Federal  Government  has  the  power  to  emit  bills  ^'"' '^^  *''"''^''- 
of  credit  in  the  way  of  circulating  notes  and  to 
endow  them  with  the  capacity  of  being  a  tender 
in  payment  of  debts ;  and  that  the  States  have 
the  power  to  create  banks  and  banking  corpora- 
tions with  the  power  to  issue  such  notes  which 
do  not  depend  upon  the  credit  of  the  State  for 
their  value  and  which  are  not  attempted  to  be 
made  by  the  State  a  legal  tender  for  debts,  and 
that  such  laws  are  valid.  It  seems  that  the  laws 
authorizing  the  States  to  create  banks  of  issue 
are  held  not  to  violate  the  prohibition  against 
emitting  bills  of  credit,  because  it  is  not  the  State 
that  emits  those  bills,  and  because  for  the  bills 
thus  issued  the  State  is  not  responsible,  as  they 
are  not  issued  or  received  on  the  credit  of  the 
State.  In  relation  to  some  of  the  banks  thus 
issuing  circulating  notes,  in  which  the  State 
owned  a  part  of  the  stock  but  for  the  redemp- 
tion of  the  notes  of  which  the  State  was  not 
legally  liable,  a  closer  question  was  raised,  but  it 
has  been  decided  in  favor  of  the  validity  of  such 
issues.  The  exercise  of  this  power  of  creating  a 
bank  with  power  to  issue  circulating  notes,  in 
which  although  the  bank  assumes  the  nature 
and  character  of  a  corporation  doing  business  in 
the  name  of  trustees  and  directors,  yet  the  State 
itself  is  the  sole  owner  of  the  capital  stock,  is 
more  doubtful  and  probably  would  not  be  sus- 
tained at  this  day.^ 

1  See  on  this  subject  Briscoe  v.  Bank  of  the  Commomcealth  of 
Kentucky,  11  Pet.  257  ;  Woodruff  v.  Trapnall,  10  How.  ?90;  Cur- 
ran  V.  Arkansas,  15  How.  304. 


584  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  XII.  The   prohibition  agiiinst    passing   bills  of   at- 

Biiis  of  attainder,  ^^-^j^^   is   one    which    was    intended   to  guard 

against  a  danger  which  has  passed  out  of  the 
memory  of  the  present  generation.  Uj)  to  the 
time  of  the  forination  of  this  Constitution 
the  Parliament  of  England  had  been  in  the  habit 
by  legislative  enactments  of  declaring  individuals 
attainted  for  treason,  for  murder,  for  conspiracies, 
and  for  other  crimes,  especially  crimes  against 
the  Government.  This  declaration  of  attainder 
by  the  legislative  body  was  accompanied,  either 
impliedly  or  by  the  express  terms  of  the  bill, 
with  a  deprivation  of  all  rights  of  property  and 
of  all  capacity  to  transmit  property  by  descent 
or  acquire  it  in  that  manner,  in  addition  to 
punishments  such  as  death  and  other  cruelties. 
This  kind  of  proceeding  was  had,  not  in  a  court 
of  justice,  nor  with  a  trial  by  jury,  nor  with  any 
of  the  usual  modes  of  ascertaining  the  guilt  or 
innocence  of  the  party  accused,  but  the  legisla- 
ture, the  Parliament,  either  with  or  without  in- 
quiry, or  with  such  insufficient  inquiry  as  they 
chose  to  make,  generally  in  the  absence  of  the 
victim,  proceeded  at  once  to  make  charges,  decide 
upon  the  guilt  of  the  party  and  announce  the 
punishment,  thus  acting  in  all  instances  as  the 
sovereign,  the  legislative,  and  judicial  power  at 
the  same  time.  This  was  done  without  any 
regularly  established  mode  of  procedure  or  rules 
of  decision.  Our  ancestors  who  had  just  come 
through  the  revolutionary  struggle  for  indepen- 
dence, and  who  felt  that  most  of  them  might 
have  been  subjected  to  this  form  of  punishment 


LIMITATIONS    UPON    POWERS    OF    STATES.  585 

by  the  Parliament  of  Great  Britain,  determined  lecture  xii. 
to  eradicate  this  system  entirely  from  the  powers  J^in^ «f  ^"^'"der. 
confided  either  to  the  Federal  Government  or  to 
the  States,  and  hence  this  prohibition. 

There  is  also  in  this  instrument,  in  addition 
to  the  prohibition  of  bills  of  attainder,  the  dec- 
laration in  the  second  clause  of  the  third  section 
of  Article  III,  that  "  no  attainder  of  treason 
shall  work  corruption  of  blood,  or  forfeiture, 
except  during  the  life  of  the  person  attainted," 
which  probably  has  reference  to  the  fact  that 
attainder  might  be  a  mode  of  punishment  under 
a  judicial  sentence,  but  even  in  that  case  it 
should  not  work  corruption  of  blood  or  extend 
to  forfeiture  of  proj)erty  beyond  the  life  of  the 
person  attainted.^ 

Ex  j)Ost  facto  laws,  which  the  States  are  h.e.re  ex  pon  facto 
forbidden  to  pass,  are  laws  intended  to  operate  ^^^^' 
in  the  way  of  punishing  crimes,  which  are 
passed  after  the  offence  or  crime  for  which  the 
party  is  being  tried  was  committed.  It  was  at 
one  time  suggested  that  this  kind  of  enactment, 
equally  forbidden  to  the  General  Government 
and  to  the  States,  might  be  held  to  be  any  law 
which  affected  the  rights  of  a  person  civilly  or 
criminally  after  those  rights  had  been  acquired 
or  established  in  accordance  with  existing  laws. 
This,  however,  is  a  mistake,  and  the  phrase 
"  ex  post  facto  laws  "  has  application  alone  to 
laws  which  relate  to  crimes  and  criminal  pro- 
ceedings, because  it  was  used   in    that  limited 

1  See  Cummings  v.  Missouri,  4  Wall.  277. 


laws. 


586  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  XII.  sense  by  our  English  ancestors  long  previous  to 
f^post/acto  ^j^^  formation  of  the  Constitution.  The  con- 
temporary accounts  of  its  adoption  show  that 
such  was  the  sense  in  which  the  Convention 
understood  it.  And  it  was  because  it  was  under- 
stood that  it  did  not  forbid  laws  "  impairing  the 
obligation  of  contracts,"  that  those  words  were 
added  in  the  same  clause. 

This  clause  of  the  Constitution  in  regard  to 
ex  post  facto  laws  was  very  early  brought  into 
question  and  came  before  the  Supreme  Court  of 
the  United  States  in  the  case  of  Colder  v.  Bull, 
3  Dall.  386.  Mr.  Justice  Chase,  who  seems  to 
have  spoken  for  the  court  on  that  occasion, 
although  several  other  judges  delivered  separate 
opinions,  takes  a  distinction  between  laws  affect- 
ing civil  rights,  which  may  be  retrospective, 
and  those  for  the  punishment  of  crime,  which 
are  ex  post  facto  ;  and  as  his  definition  has  been 
frequently  repeated  and  always  with  approval 
by  the  Supreme  Court  of  the  United  States,  and 
other  courts,  it  is  here  quoted  : 

''  I  will  state  what  laws  I  consider  ex  post 
facto  laws,  within  the  words  and  intent  of  the 
prohibition.  1st.  Every  law  that  makes  an 
action  done  before  the  passing  of  the  law,  and 
which  was  innocent  when  done,  criminal ;  and 
punishes  such  action.  2d.  Every  law  that  aggra- 
vates a  crime,  or  makes  it  greater  than  it  was, 
when  committed.  3d.  Every  law  that  changes 
the  punishment,  and  inflicts  a  greater  punish- 
ment, than  the  law  annexed  to  the  crime,  when 
committed.    4th.  Every  law  that  alters  the  legal 


LIMITATIONS    UPON    POWERS    OF    STATES.  587 

rules  of  evidence,  and  receives  less,  or  different,  lecturk  xii. 
testimony,  than  the   law  required  at  the  time  j^^^f'"''^"''*'* 
of   the  commission  of  the  offence,  in  order  to 
convict  the  offender. 

"All  these  and  similar  laws  are  manifestly 
unjust  and  oppressive.  In  my  opinion,  the  true 
distinction  is  between  ex  post  factor  laws  and 
retrospective  laws.  Every  ex  post  facto  law 
must  necessarily  be  retrospective ;  but  every 
retrospective  law  is  not  an  ex  post  facto  law : 
the  former,  only,  are  prohibited.  Every  law 
that  takes  away,  or  impairs,  rights  vested,  agree- 
able to  existing  laws,  is  retrospective,  and  is 
generally  unjust,  and  may  be  oppressive;  and 
it  is  a  good  general  rule,  that  a  law  should  have 
no  retrospect :  but  there  are  cases  in  which  laws 
may  justly,  and  for  the  benefit  of  the  commu- 
nity, and  also  of  individuals,  relate  to  a  time 
antecedent  to  their  commencement ;  as  statutes 
of  oblivion,  or  of  pardon.  They  are  certainly 
retrospective,  and  literally  both  concerning,  and 
after,  the  facts  committed. 

"But  I  do  not  consider  any  law  ex  post  facto, 
within  the  prohibition,  that  mollifies  the  rigor 
of  the  criminal  law ;  but  only  those  that  create, 
or  aggravate,  the  crime  ;  or  increase  the  punish- 
ment, or  change  the  rules  of  evidence,  for  the 
purpose  of  conviction.  Every  law  that  is  to 
have  an  operation  before  the  making  thereof,  as 
to  commence  at  an  antecedent  time ;  or  to  save 
time  from  the  statutes  of  limitations ;  or  to 
excuse  acts  which  were  unlawful,  and  before 
committed,  and  the  like,  is  retrospective.     But 


588 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  XII. 

JSx  post  facto 
laws. 


Impairing  the 
obligation  of  con- 


such  laws  may  be  proper  or  necessary,  as  the 
case  may  be.  There  is  a  great  and  apparent 
difference  between  making  an  unhiwful  act  law- 
ful, and  the  making  an  innocent  action  crimi- 
nal, and  punishing  it  as  a  crime. 

"  The  expressions  '  ex  j^ost  facto  laws '  are 
technical ;  they  had  Ijeen  in  use  long  before  the 
revolution,  and  had  acquired  an  appropriate 
meaning,  by  legislators,  lawyers,  and  authors. 
The  celebrated  and  judicious  Sir  William  Black- 
stone,  in  his  Commentaries,  considers  an  ex  post 
facto  law  precisely  in  the  same  light  as  I  have 
done.  His  opinion  is  confirmed  by  his  successor, 
Mr.  Wooddeson,  and  by  the  author  of  the  Fed- 
eralist, whom  I  esteem  superior  to  both,  for  his 
extensive  and  accurate  knowledge  of  the  true 
principles  of  government."  ^ 

The  prohibition  that  the  States  shall  pass  no 
law  impairing  the  obligation  of  contracts  is  one 
of  the  clauses  of  the  Constitution  which  has 
been  the  subject  of  as  much  judicial  considera- 
tion as  almost  any  part  of  that  instrument.  I 
have,  however,  devoted  an  entire  lecture  to  that 
subject,  and  shall,  therefore,  say  very  little  about 
it  now.  There  is  no  such  limitation  upon  the 
power  of  Congress ;  on  the  contrary,  that  body 


1  See  also  on  this  subject  the  case  of  Watson  v.  Mercer,  8  Pet. 
88,  110 ;  Satterlee  v.  i}fattheicson,  2  Pet.  380  ;  Kriny  v.  Missouri, 
107  U.  S.  221. 

During  the  revolutionary  war,  bills  of  attainder  and  ex  post 
facto  acts  of  confiscation,  were  passed  to  a  wide  extent ;  and  the 
evils  resulting  therefrom  were  supposed,  in  times  of  more  cool 
reflection,  to  have  outweighed  any  imagined  good.  2  Story  on 
Const.  237. 


LIMITATIONS    UPON    POWERS    OF    STATES.  589 

is  expressly  invested  with  the  power  to  pass  a  lectirk  xii. 
imiform  system  of  bankruptcy,  which  in  its  es- ^"7''^'7''"  !l^f^  ^„ 

•J  I       J  y  oblifjatioii  of  con- 

sential  nature  has  always  been  supposed  to  em-  tracts. 
brace  the  power  of  releasing  the  bankrupt  from 
the  obligation  of  his  contracts  upon  the  surren- 
der of  all  his  property.  The  contracts  with 
the  oblio-ations  of  which  the  States  are  forbidden 
to  interfere  by  this  clause  have  by  judicial  decis- 
ions been  held  to  be  almost  all  classes  of  contracts 
capable  of  judicial  enforcement  or  judicial  remedy, 
contracts  of  States  themselves  whereby  they  have 
granted  for  a  valuable  consideration  rights  to 
private  parties  or  to  corporations,  such  as  ex- 
emption from  taxation,  rights  to  carry  on  a  par- 
ticular kind  of  business,  as  banking  powers  and 
others.  This  prohibition  extends  without  dis- 
tinction to  implied  and  express  contracts,  and 
includes  executory  as  well  as  executed  contracts. 
It  is  not,  however,  directed  against  a  violation 
of  the  contract  by  a  party,  but  the  declaration 
is  that  ''no  State"  shall jmss  any  law  impairing 
the  oblis^ation  of  contracts.  In  all  instances  in 
which  this  provision  is  called  in  question  it  must 
be  in  reference  to  a  law  of  a  State,  and  not  to 
the  action  of  its  judicial  or  executive  powers. 
The  State  as  a  State  is  not  forbidden  to  violate 
contracts,  Init  it  is  forbidden  to  pass  a  laAV  the 
effect  of  which  is  to  impair  their  obligation.^ 
With  these  general  remarks  on  this  subject  I 
must  pass  it  for  the  present. 

The  prohibition  that  the  State  shall  not  grant  Titles  of  nobiuty. 

^Railroad  Company y.  Bock,  4  Wall.  177,  180. 


590  LECTUIiES    ON    CONSTITUTIONAL    LAW. 

Lecture  XII.  any  title  of  nobilitj  may  have  had  some  signifi- 
Tities  of  nobility.  ^^^^^  ^^  ^j^^  ^-^^^^  ^f  ^j^g  formation  of  the  Con- 
stitution of  whicJi  we  are  not  now  fully  sensible. 
It  is  one  of  that  class  of  provisions  in  that  in- 
strument by  which  the  influence  of  powerful 
individuals  and  of  foreign  nations  in  the  domes- 
tic affairs  of  our  Government  was  attempted  to 
be  repelled  in  all  the  modes  which  its  framers 
could  devise.  Thus  no  man  in  the  public  ser- 
vice was  permitted  to  accept  a  present  from  any 
foreign  potentate  or  power,  or  to  accept  a  title 
of  nobility,  and  no  State  was  permitted  to  cre- 
ate or  confer  any  such  title.  These  things 
have  passed  very  much  away,  and  it  has  become 
such  a  well  settled  practice,  in  the  absence  of 
any  attempt  to  exercise  such  powers  for  so  long 
a  period,  that  it  has  made  us  indifferent  and 
thoughtless  about  it.  But  the  aspiration  of 
many  of  our  wealthy  families  for  social  distinc- 
tion, by  making  alliances  of  marriage  or  other- 
wise with  the  members  of  the  nobility  of  foreign 
States,  leaves  little  doubt  that,  if  patents  of 
nobility  could  be  issued,  either  by  the  States  or 
the  Federal  Government,  applications  would  be 
sufficiently  numerous  for  them,  whatever  may 
be  said  of  republican  policy  and  of  republican 
simplicity. 
Duties  on  imports  Tlic  sccoud  clausc  of  this  scction  prohibits 
or  exports.  certain  acts  of  the  States  unless  with  the  con- 

sent of  Congress.  "  No  State  shall,  without 
the  consent  of  the  Congress,  lay  any  imposts  or 
duties  on  imports  or  exports,  except  what  may 
be  absolutely  necessary  for  executing  its  inspec- 


LIMITATIONS    UPON    POWERS    OF    STATES.  591 


tion  laws."     The  word  "  imports  "  here  has  ref-  lecturk  xii 

Duties  on 
or  exports, 


erence  to  goods  miported  from  a  foreign  country,  ^"'^"^'"'"  "np*""^ 


and  not  to  such  as  may  be  carried  from  one 
State  into  another.^ 

But  a  State  is  prohibited  from  taxing  goods 
brought  into  it  from  neighboring  States  by  that 
provision  of  section  8  of  the  same  Article  which 
declares  that  Congress  shall  regulate  commerce 
among  the  several  States.^ 

As  no  attempt  is  known  to  have  been  made 
by  any  of  the  States  to  levy  directly  or  inciden- 
tally imposts  or  duties  on  goods  imported  from 
foreign  nations  we  need  not  say  much  about  it, 
except  perhaps  to  refer  to  the  case  of  Brown  v. 
Maryland.  There  an  attempt  was  made  to  tax 
goods  which  had  been  imported  into  Maryland 
from  abroad,  but  which  had  not  been  distributed 
from  the  original  packages,  and  it  was  held  that 
such  o;oods  were  entitled  to  the  character  of 
imports  so  long  as  the}^  remained  in  the  pack- 
ages in  which  they  were  brought  into  this  coun- 
try, but  that  when  these  packages  were  broken 
and  the  goods  were  used  or  offered  for  sale  out- 
side of  such  original  packages,  they  had  become 
incorporated  into  the  general  property  of  the 
State,  and  were  liable  to  such  taxation  as  the 
State  imposed  on  other  property.  The  prohibi- 
tion in  regard  to  duties  on  exports,  which,  by 
another  clause,  is  also  a  limitation  upon  the  power 
of  the  Federal  Government,  makes  it  very  clear 

1  Brown  v.  Ufanjland,  12  Wheat.  419  ;  Woodruff  v.  Parham,  8 
Wall.  123 ;  Hinson  v.  Lott,  8  Wall.  148. 

2  See  Woodruff  w.  Parham  and  Ilinson  v.  Lott,  supra. 


592  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  XII.      that  tliG  Constitution  intended  that  no  product 
^r^exports""^""''  of  a  State  which  was  in  the  process  of  exporta- 
tion should  be  taxed  either  by  a  State  or  by  the 
Federal  Government ;   in  other  words,  that  the 
process  of    exporting    the  products  of  a  State, 
the  goods,  chattels,  and  property  of  the  people 
of  the  several  States,  should  not  be  obstructed 
or  hindered  by  any  burden  of  taxation  imposed 
by  either  State  or  Federal  authority. 
What  is  a  duty  on      The  Congress  of  the  United  States,  during  the 
exports.  Y^^^  q[y[\  ^^y^Y^  imposcd  a  tax  upon  cotton  and 

tobacco,  which  tax  was  not  limited  to  those 
products  when  in  the  process  of  transportation, 
but  was  assessed  on  all  the  cotton  and  tobacco 
in  the  country.  It  was  argued  that  because 
the  larger  part  of  these  products  was  exported 
out  of  the  country  and  sold  to  foreign  nations, 
and  because  their  production  was  limited  to  a 
particular  part  of  the  country,  the  tax  was 
forbidden  by  the  corresponding  clause  of  the 
Constitution  prohibiting  Congress  from  levying 
a  tax  on  exports.  Although  the  question  came 
at  that  time  to  the  Supreme  Court  of  the  United 
States,  it  was  not  then  decided,  because  of  a 
division  of  opinion  in  that  court.  The  recent 
cases,  however,  of  Coe  v.  Errol,  116  U.  S.  517, 
and  Tiirpin  v.  Burgess,  117  U.  S.  504,  seem  to 
decide  that  the  objection  was  not  valid,  and  hold 
that  only  such  property  as  is  in  the  actual  pro- 
cess of  exportation,  and  which  has  begun  it^s 
voyage  or  its  preparation  for  the  voyage,  can  be 
said  to  be  an  export. 

The   clause    which    declares   that    "  the   net 


LIMITATIONS    UPON    POWERS    OF    STATES.  693 

produce  of  all  duties  and  imposts,  laid  by  any  lecture  xn. 
State  on  imports  or  exports,  shall  be  for  the  use  ^^hat  is  a  d»ty  on 

J-  ^  ^  exports. 

of  the  treasury  of  the  United  States,"  and  that 
"  all  such  laws  shall  be  subject  to  the  revision 
and  control  of  the  Congress,"  needs  no  com- 
ment, as  no  such  duties  or  imposts  have  been 
laid  during  the  existence  of  the  government. 

The  further  provision  that  "no  State  shall,  Duty  on  tonnage, 
without  the  consent  of  Congress,  lay  any  duty 
of  tonnage,"  has  been  the  subject  of  frequent 
decisions  of  the  Supreme  Court  of  the  United 
States.  In  many  instances  the  States  have 
levied  taxes  and  assessments  on  vessels  engaged 
in  navigation  in  cases  where  they  had  a  right 
to  make  such  assessments  as  on  other  property, 
but  unfortunately  measured  the  amount  of  it 
by  the  size  of  the  vessel,  taking  her  tonnage  as 
a  mode  of  measurement ;  and,  looking  at  the 
literal  language  of  such  statutes,  since  they 
impose  a  tax  or  duty  of  so  much  per  ton  or  per 
hundred  tons,  it  is  apparently  a  tonnage  tax. 
The  question  has  been  one  of  considerable  diffi- 
culty, and  the  decisions  are  not  perhaps  always 
in  accord.  But  it  may  now  be  taken  to  be  the 
settled  doctrine  of  the  Supreme  Court  that  only 
a  tax  which  may  be  said  to  be  laid  for  the  priv- 
ilege of  a  vessel  to  enter  a  port  can  be  held  to 
be  a  tonnage  tax.  The  prohibition  against  the 
States'  levying  a  duty  of  tonnage  is  intended  to 
prevent  any  interference  with  commerce  with 
foreign  nations  or  between  one  State  and  another, 
and  is  not  intended  to  prevent  a  rightful  assess- 
ment to  secure  a  compensation  for  services  ren- 


694  LECTURES    ON    CONSTITUTIONAL    LAW. 

Lecture  XII.  clered  to  vessels  using  the  waters  of  a  State,  such 
Dutyontouuage.  ^^  ^yh^rfage  and  the  like.  The  question  is  con- 
sidered and  the  authorities  reviewed  in  a  late 
case.^  It  was  there  held  that  in  almost  all 
cases  relied  on  as  showing  that  there  was  a 
reference  to  the  tonnage  capacity  of  the  vessel 
as  a  measure  of  the  tax  there  was  an  absence  of 
any  service  rendered  for  which  the  assessment 
was  a  compensation,  and  generally  the  tax  was 
held  to  be  imposed  for  the  privilege  of  entering 
and  anchoring  in  the  port.^ 

Then  follows  the  provision  that  no  State  shall, 
without  the  consent  of  Congress,  "  keep  troops, 
or  ships  of  war,  in  time  of  peace,  enter  into  any 
agreement  or  compact  with  another  State,  or 
with  a  foreign  power,  or  engage  in  war,  unless 
actually  mvaded,  or  in  such  imminent  danger  as 
will  not  admit  of  delay."  These  provisions  need 
no  explanation.  They  explain  themselves.  They 
are  additional  safeguards  against  the  dangers 
mentioned  under  the  first  clause  which  we  have 
just  passed  over,  and  are  designed  to  incapacitate 
the  States  from  making  war  against  each  other 
or  against  the  General  Government,  or  from 
putting  themselves  in  a  position  to  defy  that 
government  and  overthrow  its  authority,  with- 
drawing from  them  at  the  same  time  the  power 
to  do  this  successfully  and  discouraging  the 
inclination  to  attempt  it.  They  are  prohibited 
from  keeping  troops  or  ships  of  war,  thus  dis- 

1  Morgmi's  Steamship  Co.  v.  Lottisiana,  455. 

2  See  also  Cannon  v.  New  Orleans,  20  Wall.  577  ;  Packet  Co.  v. 
Keokuk,  95  U.  S.  80,  84. 


LIMITATIONS    UPON    POWERS    OF    STATES.  595 

abling  them  from  any  active  belligerent  oper-  lecture  xii. 

ations  ;  nor  shall  they  enter  into  any  agreement  ^'^^^  °°  tonnage. 

or  compact  with  any  other  State,  meaning  any 

other  State  of  this  Union,  by  which  they  are 

deprived  of  the  power  of  co-operation   in  any 

hostile   movement,   either    against   a   State   or 

against  the  Federal  Government ;  nor  shall  they 

do  this  with  any  foreign  power,  which  would  be 

still  more  objectionable ;  nor  shall  they  for  any 

reasons   mentioned   in    reference   to   letters   of 

marque  engage  in  war  unless  actually  invaded, 

or  in  such  imminent  dano-er  as  will  not  admit  of 

o 

delay.  That  is  to  say,  the  only  war  power  which 
a  State  can  exercise  is  one  of  defence,  when 
actually  invaded,  or  in  the  most  imminent  danger 
of  such  invasion.  This  last  clause  in  regard  to 
imminent  danger  is  perhaps  best  illustrated  by 
the  war^  with  the  Indian  tribes,  in  which  the 
States  have  been  compelled  to  organize  forces  of 
their  own  to  protect  their  inhabitants  and  citi- 
zens from  the  terrible  onslaughts  of  the  savages 
who  make  no  proclamation  of  war  and  whose 
first  intimation  of  hostilities  is  the  destruction 
of  women  and  children  who  are  unprepared  and 
unaware  of  their  danger. 

These  provisions  show  the  skill  and  wisdom 
with  which  the  framers  of  the  original  Constitu- 
tion guarded  against  the  exercise  of  such  powers 
by  the  States  as  might  seriously  endanger  the 
existence  of  the  Federal  Union. 

The  earliest  amendments  to  that  instrument,  The  first  ten 
namely,  the  first  ten,  passed  almost  immediately  a™«"<*™®°*3. 
after  the  formation  of  the  Union,  were  intended 


596 


LECTURES    ON    CONSTITUTIONAL    LAW. 


Lecture  XII. 
The  first  ten 
amendments. 


The  Thirteenth 
Amendment. 


The  Fourteenth 
Amendment. 


to  operate  as  restraints  upon  the  national  Gov- 
ernment, and  represent  the  fears  of  those  whose 
distrust  of  it  were  greater  than  their  fears  from 
the  power  of  the  States.  This  distrust  contin- 
ued to  be  the  prevailing  sentiment  of  many  poli- 
ticians of  the  country  until  the  recent  civil  war 
broke  out  in  1861.  The  actual  events  of  that 
war,  the  circumstances  which  led  to  it,  and  its 
results,  impressed  upon  the  American  people  the 
fact  that  the  main  danger  to  the  perpetuity  of 
our  national  Government  was  to  be  found  in 
the  powers  exercised  by  the  States,  and  several 
amendments  to  the  Constitution,  the  Thirteenth, 
Fourteenth,  and  Fifteenth,  were  almost  exclu- 
sively devoted  to  limitations  upon  such  powers. 
These  are  in  themselves  so  important  that  I  can- 
not in  this  lecture  attempt  to  comment  upon 
them.  It  is  sufficient  to  say  that  the  Thirteenth 
abolishes  slavery  in  all  the  States  of  the  Union, 
its  existence  before  that  time  being  entirely 
dependent  upon  the  laws  of  the  several  States, 
and  it  gives  to  Congress  the  power  to  enforce 
the  prohibition  by  appropriate  legislation.  The 
Fourteenth  Amendment,  after  defining  what  citi- 
zenship of  the  United  States  is,  makes  these 
important  limitations  upon  the  powers  of  the 
States :  "  No  State  shall  make  or  enforce  any 
law  which  shall  abridge  the  privileges  or  immu- 
nities of  citizens  of  the  United  States ;  nor  shall 
any  State  deprive  any  person  of  life,  liberty,  or 
property,  without  due  process  of  law ;  nor  deny 
to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws." 


LIMITATIONS    UPON    POWEKS    OF    STATES.  597 

The  Fifteenth  Amendment  declares  that  "  the  lfxtuke  xii. 
right  of  citizens  of  the  United  States  to  vote  Amendment' 
shall  not  be  denied  or  abridged  by  the  United 
States  or  by  any  State  on  account  of  race,  color, 
or  previous  condition  of  servitude." 

These  provisions  of  the  amendments  to  the 
Constitution,  adopted  immediately  after  the  close 
of  the  civil  war  as  part  of  the  system  of  recon- 
struction made  necessary  by  that  war,  have  been 
the  subject  of  much  discussion  in  the  public 
prints,  in  both  Houses  of  Congress,  and  of  decis- 
ions of  the  Supreme  Court  of  the  United  States. 
A  moment's  glance  at  them  will  show  that  they 
are  too  important  to  be  considered  at  the  close 
of  a  lecture  already  sufficiently  long. 


NOTES   UPON  LECTURE  XII. 


Lecture  XII.  This  lecture  closes  with  a  reference  to  tlie 

Notes.  Thirteenth,  Fourteenth,  and  Fifteenth  Amend- 

ments, but  without  discussing  them.  They  are 
treated  in  the  Supplementary  Paper,  No.  XIII, 
which  is  devoted  to  the  consideration  of  subjects 
not  discussed  elsewhere. 

In  previous  lectures,  Mr.  Justice  Miller  has 
referred  to  a  class  of  powers  which  States  may 
not  exercise,  because  exclusively  conferred  upon 
Congress.  The  most  prominent  among  these  is 
the  power  to  regulate  commerce,  which  the 
Supreme  Court,  after  considerable  fluctuation, 
held,  in  a  case  in  which  the  opinion  was  written 
by  Mr.  Justice  Miller,  to  be  so  exclusively  vested 
in  Congress  that  a  State  could  not  legislate  upon 
the  subject.  In  the  headnote,  which  was  also 
prepared  by  him,  the  proposition  is  laid  down 
that  "  a  statute  of  a  State,  intended  to  regulate, 
or  to  tax,  or  to  impose  any  other  restriction 
upon  the  transmission  of  persons  or  property  or 
telegraphic  messages  from  one  State  to  another, 
is  not  within  that  class  of  legislation  which  the 
States  may  enact  in  the  absence  of  legislation 
by  Congress ;  and  such  statutes  are  void,  even 
598 


NOTES    UPON    LECTURE    XII.  599 

as  to  that  part  of  such  transaction  which  may  lecture  xii. 
be  within  the  State."  '  ^'''''^ 

While  the  Constitution,  by  the  tenth  section 
of  the  First  Article,  took  away  from  the  States 
the  power  of  passing  bills  of  attainder  and  ex 
post  facto  laws,  by  the  second  paragraph  in  the 
third  section  of  the  Third  Article  it  conferred 
upon  Congress  the  "  power  to  declare  the  punish- 
ment of  treason,"  but  added  :  "  but  no  attainder 
shall  work  corruption  of  blood,  or  forfeiture, 
except  during  the  life  of  the  person  attamted." 
As  pertinent  to  the  general  subject  of  attainder, 
though  not  to  the  limitation  of  the  powers  of 
States,  I  will  briefly  notice  the  action  of  Con- 
gress and  of  the  Supreme  Court  in  respect  of 
this  power. 

In  1861  Congress  passed  an  act  for  the  con- 
fiscation of  property  used  in  aid  of  the  rebellion.^ 
This  was  followed  the  next  year  by  ''  an  act  to 
suppress  insurrection,  to  punish  treason  and 
rebellion,  to  seize  and  confiscate  the  property  of 
rebels,  and  for  other  purposes,"  ^  which  made 
provision  for  the  seizure,  judicial  confiscation, 
and  sale  of  the  property  of  persons  giving  aid 
and  comfort  to  the  rebellion.  The  latter  act  was 
accompanied  by  a  joint  resolution  of  Congress, 
also  approved  by  the  President,  in  which,  after 
referring  to  that  act,  it  was  said  :  "  Nor  shall 
any  punishment  or  proceedings  under  said  act  be 

1  Wabash,  St.  Louis  (fc  Pacific  Railway  Co.  v.  Illinois,  118  U.  S. 
557. 

2  Act  of  August  6,  1861,  12  Stat.  .319  c.  60. 
s  Act  of  July  17,  1862,  12  Stat.  589  c.  195. 


coo  LECTURES    ON    CONSTITUTIONAL   LAW. 

Lecture  XII,     SO  coiistrued  as  to  work  a  forfeiture  of  the  real 
^^^^^'  estate  of  the  offender  beyond  his  natural  life."^ 

The  court  held  that  the  joint  resolution  was 
intended  to  protect  the  interest  of  the  heirs 
only;  and  that  the  interest  of  the  offender  in 
the  real  estate  could  be  seized  and  confiscated, 
leavins:  him  without  further  interest  or  owner- 
ship  in  it.^  But  in  a  later  case  it  held  that 
if  the  offender  was  pardoned,  a  remainder  was 
left  in  him  after  the  confiscated  life  estate  which 
he  could  dispose  of.^ 

1  Joint  Resolution  of  July  17,  1862,  12  Stat.  627,  No.  63. 

2  Wallach  v.Van  Biswick,  92  U.  S.  202. 

«  Illinois  Central  Sailroad  Co.  v.  Bosworth,  133  U.  S.  92. 


XIII. 

SUPPLEMENTARY:   SUBJECTS  NOT  DIS- 
CUSSED  ELSEWHERE. 


Constitution,  Article  I,  Section  1.     All  legisla-  Lecture  XIII. 
tive  Powers  herein  granted  shall  be  vested  in  a  Con-  Supplementary, 
gress  of  the  United  States,  which  shall  consist  of  a 
Senate  and  House  of  Representatives. 

Article  I,  Section  2,  Paragraphs  1,  2,  and  .3. 
The  House  of  Representatives  shall  be  composed  of 
Members  chosen  every  second  Year  by  the  People  of 
the  several  States,  and  the  Electors  in  each  State 
shall  have  the  Qualifications  requisite  for  Electors  of 
the  most  numerous  Branch  of  the  State  Legislature. 

No  Person  shall  be  a  Representative  who  shall 
not  have  attained  to  the  Age  of  twenty-five  Years, 
and  been  seven  Years  a  Citizen  of  the  United  States, 
and  who  shall  not,  when  elected,  be  an  Inhabitant  of 
that  State  in  which  he  shall  be  chosen. 

[Representatives  and  direct  Taxes  shall  be  appor- 
tioned among  the  several  States  which  may  be  in- 
cluded within  this  Union,  according  to  their  respective 
Numbers,  which  shall  be  determined  by  adding  to  the 
whole  Number  of  free  Persons,  including  those  bound 
to  Service  for  a  Term  of  Years,  and  excluding  Indians 
not  taxed,  three-fifths  of  all  other  Persons.]  ^  The 
actual  Enumeration  shall  be  made  within  three  Years 
after  the  first  Meeting  of  the  Congress  of  the  L^nited 
States,  and  witliin  every  subsequent  Term  of  ten 
Years,  in  such  Manner  as  they  shall  by  Law  direct. 
The  Number  of  Representatives  shall  not  exceed  one 
for  every  thirty  Thousand,  but  each  State  shall  have 

1  The  portion  of  this  clause  within  brackets  has  been  amended 
by  the  Fourteenth  Amendment. 

601 


602  SUPPLEMENTARY. 

Lecture  XIII.  at  Least  one  Representative ;  and  until  such  enumera- 

Supplementary.  tion  shall  be  made,  the  State  of  New  Hampshire  shall 

be  entitled  to  chuse  three,  Massachusetts  eight,  Rhode 
Island  and  Providence  Plantations  one,  Connecticut 
five,  New  York  six.  New  Jersey  four,  Pennsylvania 
eight,  Delaware  one,  Maryland  six,  Virginia  ten, 
North  Carolina  five.  South  Carolina  five,  and  Georgia 
three. 

Article  I,  Section  3.  The  Senate  of  the  United 
States  shall  be  composed  of  two  Senators  from  each 
State,  chosen  by  the  Legislature  thereof,  for  six 
Years ;  and  each  Senator  shall  have  one  Vote. 

Immediately  after  they  shall  be  assembled  in  Con- 
sequence of  the  first  Election,  they  shall  be  divided 
as  equally  as  may  be  into  three  Classes.  The  Seats 
of  the  Senators  of  the  first  Class  shall  be  vacated  at 
the  Expiration  of  the  second  Year,  of  the  second 
Class  at  the  Expiration  of  the  fourth  Year,  and  of 
the  third  Class  at  the  Expiration  of  the  sixth  Year,  so 
that  one-third  may  be  chosen  every  second  Year ;  and 
if  Vacancies  happen  by  Resignation,  or  otherwise, 
during  the  Recess  of  the  Legislature  of  any  State,  the 
Executive  thereof  may  make  temporary  Appointments 
until  the  next  Meeting  of  the  Legislature,  which  shall 
then  fill  such  Vacancies. 

Article  I,  Section  4,  Paragraphs  1  and  2.  The 
Times,  Places  and  Manner  of  holdmg  Elections  for 
Senators  and  Representatives,  shall  be  prescribed  in 
each  State  by  the  Legislature  thereof ;  but  the  Con- 
gress may  at  any  time  by  Law  make  or  alter  such 
Regulations,  except  as  to  the  places  of  chusing  Sena- 
tors. 

The  Congress  shall  assemble  at  least  once  in  every 
Year,  and  such  Meeting  shall  be  on  the  first  Monday 
in  December,  unless  they  shall  by  Law  appoint  a  dif- 
ferent Day. 

Article  I,  Section  5,  Paragraphs  1  and  2. 
Each  House  shall  be  the  Judge  of  the  Elections,  Re- 
turns and  Qualifications  of  its  own  Members,  and  a 
Majority  of  each  shall  constitute  a  Quorum  to  do 
Business ;  but  a  smaller  Number  may  adjourn  from 
day  to  day,  and  may  be  authorized  to  compel  the  At- 
tendance of  absent  Members,  in  such  Manner,  and 
under  such  Penalties  as  each  House  may  provide. 

Each  House  may  determine  the  Rules  of  its 
Proceedings,  punish  its  Members  for  disorderly  Be- 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  603 

haviour,  and,  with  the  Concurrence   of  two-thirds,  Lectttre  XIII. 
expel  a  Member.  Supplemeutary. 

Article  I,  Section  8,  Paragraph  1  to  Para- 
graph 17.     The  Congress  sliall  have  Power 

To  lay  and  collect  Taxes,  Duties,  Imposts  and 
Excises,  to  pay  the  Debts  and  provide  for  the  common 
Defence  and  general  Welfare  of  the  United  States ; 
but  all  Duties,  Imposts  and  Excises  shall  be  uniform 
throughout  the  United  States  ; 

To  borrow  Money  on  the  credit  of  the  United 
States ; 

To  regulate  Commerce  with  foreign  Nations,  and 
among  the  several  States,  and  with  the  Indian 
Tribes ; 

To  establish  an  uniform  Rule  of  Naturalization, 
and  uniform  Laws  on  the  subject  of  Bankruptcies 
throughout  the  United  States  ; 

To  coin  Money,  regulate  the  Value  thereof,  and  of 
foreign  Coin,  and  fix  the  Standard  of  Weights  and 
Measures ; 

To  provide  for  the  Punishment  of  counterfeiting 
the  Securities  and  current  Coin  of  the  United  States ; 

To  establish  Post  Offices  and  post  Roads ; 

To  promote  the  progress  of  Science  and  useful 
Arts,  by  securing  for  limited  Times  to  Authors  and 
Inventors  the  exclusive  Right  to  their  respective  Writ- 
ings and  Discoveries ; 

To  constitute  Tribunals  inferior  to  the  supreme 
Court; 

To  define  and  punish  Piracies  and  Felonies  com- 
mitted on  the  high  Seas,  and  Offences  against  the  Law 
of  Nations ; 

To  declare  War,  grant  Letters  of  Marque  and  Re- 
prisal, and  make  Rules  concerning  Captures  on  Land 
and  Water  ; 

To  raise  and  support  Armies,  but  no  Appropriation 
of  Money  to  that  Use  shall  be  for  a  longer  Term  than 
two  Years ; 

To  provide  and  maintain  a  Navy  ; 

To  make  Rules  for  the  Government  and  Regulation 
of  the  land  and  naval  Forces  ; 

To  provide  for  calling  forth  the  Militia  to  execute 
the  Laws  of  the  Union,  suppress  Insurrections  and 
repel  Invasions ; 

To  provide  for  organizing,  arming,  and  disciplin- 
ing, the  Militia,  and  for  governing  such  Part  of  them  as 


604  SUPPLEMENTARY. 

Lecture  XIII.  may  be  employed  in  the  Service  of  the  United  States, 

Supplementary.  reserving  to  the  States  respectively,  the  Appointment 

of  the  Officers,  and  the  Authority  of  training  the  Militia 
according  to  the  Discipline  prescribed  by  Congress  ; 

To  exercise  exclusive  Legislation  in  all  Cases 
whatsoever,  over  such  District  (not  exceeding  ten 
Miles  square)  as  may,  by  Cession  of  particular  States, 
and  the  Acceptance  of  Congress,  become  the  Seat  of 
the  Government  of  the  United  States,  and  to  exercise 
like  Authority  over  all  Places  purchased  by  the  Con- 
sent of  the  Legislature  of  the  State  in  which  the  same 
shall  be,  for  the  Erection  of  Forts,  Magazines,  Arse- 
nals, Dock-yards,  and  other  needful  Buildings. 

Article  I,  Section  9,  Paragraphs  1,  2,  3,  4. 
The  Migration  or  Importation  of  such  Persons  as  any 
of  the  States  now  existing  shall  think  proper  to  admit, 
shall  not  be  prohibited  by  the  Congress  prior  to  the 
Year  one  thousand  eight  hundred  and  eight,  but  a  Tax 
or  Duty  may  be  imposed  on  such  Importation,  not  ex- 
ceeding ten  dollars  for  each  Person. 

The  Privilege  of  the  Writ  of  Habeas  Corpus  shall 
not  be  suspended,  unless  when  in  Cases  of  Rebellion 
or  Invasion  the  public  Safety  may  require  it. 

No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be 
passed. 

No  Capitation,  or  other  direct.  Tax  shall  be  laid, 
unless  in  Proportion  to  the  Census  or  Enumeration 
herein  before  directed  to  be  taken. 

Article  II,  Section  1,  Paragraphs  5  and  7.  In 
case  of  the  Removal  of  the  President  from  Office,  or 
of  his  Death,  Resignation,  or  Inability  to  discharge 
the  Powers  and  Duties  of  the  said  Office,  the  same 
shall  devolve  on  the  Vice-President,  and  the  Congress 
may  by  Law  provide  for  the  Case  of  Removal,  Death, 
Resignation,  or  Inability,  both  of  the  President  and 
Vice-President,  declaring  what  Officer  shall  then  act  as 
President,  and  such  Officer  shall  act  accordingly,  until 
the  Disability  be  removed,  or  a  President  shall  be 
elected. 

Before  he  enter  on  the  execution  of  his  Office,  he 
shall  take  the  following  Oath  or  Affirmation :  — 

"  I  do  solemnly  swear  (or  affirm)  that  I  will  faith- 
fully execute  the  Office  of  President  of  the  United 
States,  and  will  to  the  best  of  my  Ability,  preserve, 
protect  and  defend  the  Constitution  of  the  United 
States." 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  605 

Article   IV,  Section  1.     Full   Faith  and  Credit  Lecture  XITI. 

shall  be  given  in  each  State  to  the  public  Acts,  Records,  Supplementary, 
and  judicial  Proceedings  of  every  other  State.     And 
the  Congress  may  by  general  Laws  prescribe  the  Man- 
ner in  which  such  Acts,  Records  and  Proceedings 
shall  be  proved,  and  the  Effect  thereof. 

Article  IV,  Section  2,  Paragraphs  2,  3.  A  Per- 
son charged  in  any  State  with  Treason,  Felony,  or 
other  Crime,  who  shall  flee  from  Justice,  and  be  found 
in  another  State,  shall  on  Demand  of  the  executive 
Authority  of  the  State  from  which  he  fled,  be  delivered 
up,  to  be  removed  to  the  State  having  Jurisdiction  of 
the  Ci'ime. 

No  Person  held  to  Service  or  Labour  in  one  State, 
under  the  Laws  thereof,  escaping  into  another,  shall, 
in  Consequence  of  any  Law  or  Regulation  therein,  be 
discharged  from  such  Service  or  Labour,  but  shall  be 
delivered  up  on  Claim  of  the  Party  to  whom  such  Ser- 
vice or  Labour  may  be  due. 

Article  IV,  Section  3,  Paragraphs  1,  2.  New 
States  may  be  admitted  by  the  Congress  into  this 
Union  ;  but  no  new  State  shall  be  formed  or  erected 
within  the  Jurisdiction  of  any  other  State ;  nor  any 
State  be  formed  by  the  Junction  of  two  or  more 
States,  or  Parts  of  States,  without  the  Consent  of  the 
Legislatures  of  the  States  concerned  as  well  as  of  the 
Congress. 

The  Congress  shall  have  Power  to  dispose  of  and 
make  all  needful  Rides  and  Regulations  respecting  the 
Territory  or  other  Property  belonging  to  the  United 
States  ;  and  nothing  in  this  Constitution  shall  be  so 
construed  as  to  Prejudice  any  claims  of  the  United 
States,  or  of  any  particular  State. 

Article  IV,  Section  4.  The  United  States  shall 
guarantee  to  every  State  in  this  Union  a  Republican 
Form  of  Government,  and  shall  protect  each  of  them 
against  Invasion,  and  on  Application  of  the  Legis- 
lature, or  of  the  Executive  (when  the  Legislature  can- 
not be  convened)  against  domestic  Violence. 

Article  VI,  Paragraphs  1,  2.  All  Debts  con- 
tracted and  Engagements  entered  into,  before  the 
Adoption  of  this  Constitution,  shall  be  as  valid  against 
the  United  States  under  this  Constitution,  as  under 
the  Confederation. 

This  Constitution,  and  the  Laws  of  the  United 
States  which  shall  be  made  in  Pursuance  thereof ;  and 


606  SUPPLEMENTARY. 

Lecture  XIII.  all  Treaties  made,  or  which  shall  be  made,  under  the 

Supplementary.  authority  of  the  United  States,  shall  be  the  supreme 

Law  of  the  Land ;  and  the  Judges  in  every  State  shall 
be  bound  thereby,  any  Thing  in  the  Constitution  or 
Laws  of  any  State  to  the  Contrary  notwitlistanding. 

First  Ameni>ment.  Congress  shall  make  no  law 
respecting  an  establishment  of  religion,  or  prohibiting 
the  free  exercise  thereof  ;  or  abridging  the  freedom  of 
speech,  or  of  the  press ;  or  the  right  of  the  people 
peaceably  to  assemble,  and  to  petition  the  Govern- 
ment for  a  redress  of  grievances. 

Second  Amendment.  A  well  regulated  Militia, 
being  necessary  to  the  security  of  a  free  State,  the 
right  of  the  people  to  keep  and  bear  Arms,  shall  not 
be  infringed. 

Third  Amendment.  No  Soldier  shall,  in  time  of 
peace,  be  quartered  in  any  house,  without  the  consent 
of  the  Owner,  nor  in  time  of  war,  but  in  a  manner  to 
be  prescribed  by  law. 

Fourth  Amendment.  The  right  of  the  people  to 
be  secure  in  their  persons,  houses,  papers,  and  effects, 
against  unreasonable  searches  and  seizures,  shall  not 
be  violated,  and  no  Warrants  shall  issue,  but  upon 
probable  cause,  supported  by  Oath  or  affirmation,  and 
particularly  describing  the  place  to  be  searched,  and 
the  persons  or  things  to  be  seized. 

Fifth  Amendment.  No  person  shall  be  held  to 
answer  for  a  capital,  or  otherwise  infamous  crime, 
unless  on  a  presentment  or  indictment  of  a  Grand 
Jury,  except  in  cases  arising  in  the  land  or  naval 
forces,  or  in  the  Militia,  when  in  actual  service  in 
time  of  War  or  public  danger ;  nor  shall  any  person 
be  subject  for  the  same  offence  to  be  twice  put  in 
jeopardy  of  life  or  limb ;  nor  shall  be  compelled  in 
any  Criminal  Case  to  be  a  witness  against  himself, 
nor  be  deprived  of  life,  liberty,  or  property,  without 
due  process  of  law ;  nor  shall  private  property  be 
taken  for  public  use,  without  just  compensation. 

Eighth  Amendment.  Excessive  bail  shall  not  be 
required,  nor  excessive  fines  imposed,  nor  cruel  and 
unusual  punishments  inflicted. 

Ninth  Amendment.  The  enumeration  in  the  Con- 
stitution, of  certain  rights,  shall  not  be  construed  to 
deny  or  disparage  others  retained  by  the  people. 

Tenth  Amendment.  The  powers  not  delegated  to 
the  United  States  by  the  Constitution,  nor  prohibited 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  607 

by  it  to  the  States,  are  reserved  to  the  States  respec-  Lecture  XIII. 

tively  or  to  the  people.  Supplementary. 

Thikteentii  Amendment.  Section  1.  Neither 
slavery  nor  involuntary  servitude,  except  as  a  punish- 
ment for  crime  whereof  the  party  shall  have  been  duly 
convicted,  shall  exist  within  the  United  States,  or  any 
place  subject  to  their  jurisdiction. 

Section  2.  Congress  shall  have  power  to  enforce 
this  article  by  appropriate  legislation. 

Fourteenth  Amendment.  Section  1.  All  per- 
sons born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  State  wherein  they  reside. 
No  State  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States  ;  nor  shall  any  State  deprive  any  person 
of  life,  liberty,  or  property,  without  due  process  of 
law ;  nor  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws. 

Section  2.  Representatives  shall  be  apportioned 
among  the  several  States  according  to  their  respective 
numbers,  counting  the  whole  number  of  persons  in 
each  State,  excluding  Indians  not  taxed.  But  when 
the  right  to  vote  at  any  election  for  the  choice  of  Elec- 
tors for  President  and  Vice-President  of  the  United 
States,  Representatives  in  Congress,  the  executive  and 
judicial  officers  of  a  State,  or  the  members  of  the  Legis- 
lature thereof,  is  denied  to  any  of  the  male  inhabi- 
tants of  such  State,  being  twenty-one  years  of  age 
and  citizens  of  the  United  States,  or  in  any  way 
abridged,  except  for  participation  in  rebellion  or 
other  crime,  the  basis  of  representation  therein  shall 
be  reduced  in  the  proportion  which  the  number  of 
such  male  citizens  shall  bear  to  the  whole  number  of 
male  citizens  twenty-one  years  of  age  in  such  State. 

Section  3.  No  person  shall  be  a  Senator  or  Repre- 
sentative in  Congress,  or  Elector  of  President  and 
Vice-President,  or  hold  any  office,  civil  or  military, 
under  the  United  States,  or  under  any  State,  who, 
having  previously  taken  an  oath,  as  a  member  of  Con- 
gress, or  as  an  officer  of  the  United  States,  or  as  a 
member  of  any  State  Legislature,  or  as  an  executive  or 
judicial  officer  of  any  State,  to  support  the  Constitu- 
tion of  the  United  States,  shall  have  engaged  in  insur- 
rection or  rebellion  against  the  same,  or  given  aid  or 
comfort  to  the  enemies  thereof.     But  Congress  may, 


608 


SUPPLEMENTARY. 


Lecture  XIII. 
Supplementary. 


by  a  vote  of  two-thirds  of  each  House,  remove  such 
disability. 

Section  4.  The  validity  of  the  public  debt  of  the 
United  States,  authorized  by  law,  including  debts 
incurred  for  payment  of  pensions  and  bounties  for 
services  in  suppressing  insurrection  or  rebellion,  shall 
not  be  questioned.  But  neither  the  United  States  nor 
any  State  shall  assume  or  pay  any  debt  or  obligation 
incurred  in  aid  of  insurrection  or  rebellion  against  the 
United  States,  or  any  claim  for  the  loss  or  emancipa- 
tion of  any  slave ;  but  all  such  debts,  obligations,  and 
claims  shall  be  held  illegal  and  void. 

Section  5.  The  Congress  shall  have  power  to 
enforce,  by  appropriate  legislation,  the  provisions  of 
this  article. 

Fifteenth  Amendment.  Section  1.  The  right 
of  citizens  of  the  United  States  to  vote  shall  not  be 
denied  or  abridged  by  the  United  States,  or  by  any 
State,  on  account  of  race,  color,  or  previous  condition 
of  servitude. 

Section  2.  The  Congress  shall  have  power  to 
enforce  this  article  by  appropriate  legislation. 


Some  of  the  minor  provisions  of  the  Constitu- 
tion have  not  been  treated  by  Mr.  Justice  Miller, 
or  they  have  been  touched  upon  only  in  a  cur- 
sory way.  It  will  be  the  aim  of  this  supple- 
mentary paper  to  treat  these  subjects  briefly, 
and  in  their  order  as  they  stand  in  that  instru- 
ment. 


Congress :  its 
organization  and 
parliamentary 
powers. 


1.    Congress :   its   Organization  and  Parliamen- 
tary Powers. 

The  legislative  powers  granted  to  the  Union 
by  the  Constitution  are,  by  section  1,  Article  I, 
"  vested  in  a  Congress  of  the  United  States, 
which  shall  consist  of  a  Senate  and  House  of 
Representatives." 

In  Lecture  IV  the  separate  powers  confided 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  609 

by  the    Constitution  to  the  Senate  and  to  the  lecture  xiii. 
House  of  Representatives  respectively  were  fully  J'"i'i''<^'"entary. 

'^  i.  xi  J    Congress :  its 

discussed.       In    other    lectures    the    legislative  organization  and 

powers  reposed  in  them  jointly,  as  "  The  Senate  powers.'*^"^'^'^^ 

and  the  House  of  Representatives  of  the  United 

States  of  America  in  Congress  assembled,"  were 

treated  in  detail ;    and  those  which  are  denied 

to  them  and  retained  by  the  States  were  also 

pointed  out  and  discussed  in  detail. 

From  the  opening  of  the  Convention  it  was  de- 
termined that,  following  the  settled  precedents 
of  the  English  race,  the  power  of  the  new  legis- 
lative body  to  be  created  by  it  should  be  reposed 
in  two  Houses.  It  was  not  until  the  25th  of 
May,  1787,  that  a  quorum  of  States  was  at- 
tained; and,  as  early  as  the  29th  of  that  month, 
two  projects  were  launched,  which  eventually 
resulted  in  the  Constitution.  The  first  of  these 
was  the  Virginia  plan  in  sixteen  resolutions, 
offered  by  Edmund  Randolph  ;  and  the  second 
a  draft  for  a  Constitution,  presented  by  Charles 
Pinckney  of  South  Carolina.  These  papers  will 
be  found  'in  the  Appendix.  Each  made  pro- 
vision for  a  national  legislature,  to  consist  of 
two  Houses ;  and  in  each  it  was  provided  that 
the  members  of  the  House  of  Representatives 
should  be  elected  by  the  people. 

The  basis  thus  recommended  for  the  House  of  The  House :  how 
Representatives    was    substantially    adopted    in  ^  ^^"^^ 
section  2  of  Article  I  of  the  Constitution,  which 
provides   that   "  the   House   of   Representatives 
shall   be  composed    of   Members    chosen    every 
second  Year  by  the  People  of  the  several  States, 


610 


SUPPLEMENTARY. 


Lecture  XIII. 
Supplementary. 
The  House :  how 
elected. 

Number  of  mem- 
bers. 


and  the  Electors  in  each  State  shall  have  the 
Qualifications  requisite  for  Electors  of  the  most 
numerous  Branch  of  the  State  Legislature." 

As  originally  constituted,  the  House  of  Rep- 
resentatives consisted  of  sixty-five  members,  of 
whom  the  Constitution  made  the  first  apportion- 
ment ;  but,  under  further  provision  in  the  same 
section,  an  enumeration  or  census  was  taken, 
which  w^as  made  the  basis  of  a  new  a})portion- 
ment.  Once  in  each  succeeding  ten  years,  under 
the  provisions  of  the  same  section,  a  new  census 
or  enumeration  has  been  taken,  and  a  new  ap- 
portionment made  by  Congress.  Under  the  last 
enumeration  and  apportionment  ^  the  House  of 
Representatives  consists  of  three  hundred  and 
fifty-six  members,  not  including  Delegates  from 
the  Territories.  The  District  of  Columbia  also 
at  one  time  enjoyed  the  privilege  of  being  rep- 


126  Stat.  735,  c.  116.  An  act  making  an  apportionment  of 
Representatives  in  Congress  among  the  several  States  under  the 
Eleventh  Census. 

Be  it  enacted,  etc.,  That  after  the  third  of  March,  eighteen  hun- 
dred and  ninety-three,  the  House  of  Representatives  shall  be  com- 
posed of  three  hundred  and  fifty-six  members,  to  be  apportioned 
among  the  several  States  as  follows  :  Alabama,  nine  ;  Arkansas, 
six ;  California,  seven  ;  Colorado,  two  ;  Connecticut,  four  ;  Dela- 
ware, one ;  Florida,  two  ;  Georgia,  eleven  ;  Idaho,  one  ;  Illinois, 
twenty-two  ;  Indiana,  thirteen  ;  Iowa,  eleven  ;  Kansas,  eight ; 
Kentucky,  eleven  ;  Louisiana,  six  ;  Maine,  four ;  Maryland,  six  ; 
Massachusetts,  thirteen  ;  Michigan,  twelve  ;  Minnesota,  seven  ; 
Mississippi,  seven  ;  Missouri,  fifteen  ;  Montana,  one  ;  Nebraska, 
six  ;  Nevada,  one  ;  New  Hampshire,  two  ;  New  Jersey,  eight ;  New 
York,  thirty-four ;  North  Carolina,  nine ;  North  Dakota,  one  ; 
Ohio,  twenty-one  ;  Oregon,  two  ;  Pennsylvania,  thirty  ;  Rhode 
Island,  two  ;  South  Carolina,  seven ;  South  Dakota,  two  ;  Ten- 
nessee, ten  ;  Texas,  thirteen  ;  Vermont,  two  ;  A^irginia,  ten  ; 
Washington,  two  ;  West  Virginia,  four ;  Wisconsin,  ten  ;  AVyo- 
ming,  one.     [Approved  February  7,  1891.] 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  Gil 

resented  in  the  House  as  a  Territory,  without  lecture  xiu. 
the   right   of  voting.     But  this  privilege,   con- ^"^'^I'^"'"';'"'^- 

o  o  r  n    7  rs  umber  of  mem- 

ferred  at  a  late  hour,  was  soon  withdrawn.  bers. 

The  Senate  was  organized  by  the  Constitution  The  Senate. 
on  a  very  different  basis  from  that  thrown  out 
in  either  of  the  programmes.  It  was  the  result 
of  discussion  and  compromise.  The  equality  of 
representation  of  the  small  and  the  large  States 
contributed  sensibly  toward  securing  the  assent 
of  the  former  to  the  Constitution,  and  thus  aided 
in  bringing  about  the  Union. 

The  third  section  of  Article  I  contains  two 
clauses  providing  as  follows :  "  The  Senate  of 
the  United  States  shall  be  composed  of  two 
Senators  from  each  State,  chosen  by  the  Legis- 
lature thereof,  for  six  Years  and  each  Senator 
shall  have  one  Vote."  The  first  of  these  clauses 
gives  to  the  States  the  equality  of  representation 
which  each  enjoyed  under  the  Articles  of  Con- 
federation. The  second  takes  away  the  voting 
by  States,  and  puts  that  responsibility  upon 
each  individual  Senator.  The  same  section,  in 
another  paragraph,  requires  that  each  Senator 
shall  have  attained  the  age  of  thirty  years,  that 
he  shall  have  been  nine  years  a  citizen  of  the 
United  States,  and  that,  at  the  time  of  his  elec- 
tion, he  shall  be  an  inhabitant  of  the  State 
which  he  represents. 

The   Senate  is  divided  into  three  classes,  as  Number  of  mem- 
nearly  equally  as  possible,  so  that  one-third  shall   ^"" 
go  out  at  the  expiration  of  each  Congress.     The 
first  division  was  made  under  the  provisions  of 
section  3,  and  as  representatives  from  new  States 


612  SUPPLEMENTARY. 

Lecture  XIII.    have  appeared  they  have  successively  been  clas- 
suppiementary.    ^-g^^  j^     j^^^_     ^^  -^^   inception  it  consistcd  of 

Is  umber  01  mem-  "^  *  _  ^ 

bers.  twenty-six  members.     It  now  consists  of  eighty- 

eight  members. 

The  same  section  confers  upon  the  House  of 
Representatives  the  power  of  clioosing  its  Speaker 
and  other  officers,  and  upon  the  Senate  the  power 
of  choosing  its  officers,  and  a  President  2^^o  ^^m- 
jwre  in  the  absence  of  the  Vice-President,  who  is 
made  its  President  by  the  Constitution,  but 
without  a  vote  except  when  the  Senate  is  equally 
divided.  In  practice  a  President  j^ro  tempore  is 
usually  elected,  who  serves  in  all  absences  of  the 
Vice-President  until  he  resigns  or  is  replaced  by 
another  by  vote  of  the  Senate. 

How  elected.  Article  I,  section  4,  provides  that "  The  Times, 

Places  and  Manner  of  holding  Elections  for 
Senators  and  Representatives  shall  be  prescribed 
in  each  State  by  the  Legislature  thereof ;  but 
the  Congress  may  at  any  time  by  Law  make  or 
alter  such  Regulations,  except  as  to  the  places 
of  choosing  Senators." 

This  power  was  first  exercised  in  1842.^  It 
had  become  the  custom  in  some  of  the  States  to 
elect  the  entire  State  representation  in  the  House 
of  Representatives  on  a  general  ticket,  voted 
upon  as  a  whole  throughout  the  State,  thus 
securing  a  solid  delegation  of  one  political  faith. 
To  break  up  this  custom  Congress  enacted  that 
when  a  State  was  entitled  to  more  than  one 
member,  the  members  should  be  elected  by  dis- 

1  Act  of  June  25,  1842,  5  Stat.  491,  c.  47. 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  613 


tricts  composed  of  contiguous  territory.      This  Lfxtcre  xitt. 

system  hcis  been  since  retained.^     In   1872  Con-  tZ^^^!^"^' 

gress  further  provided  that  such  elections  should 

take  place  on  the  Tuesday  next  after  the  first 

Monday  of  November,  1876,  and  the  like  day  of 

that    month   in    every  second  year  thereafter,^ 

which  is  now  the  law.^     It   is  further  provided 

that  vacancies  may  be  filled   at  such   times  as 

State  laws  ma}^  prescribe,"*  and  that  all  elections 

shall  be  by  ballot.^ 

The  first  legislation  for  regulating  the  elec- 
tion of  Senators  was  in  1866.®  The  statute 
then  enacted  is  practically  codified  in  the  Re- 
vised Statutes.^  The  legislature  of  each  State 
chosen  next  preceding  the  expiration  of  the 
time  for  which  any  Senator  was  elected  to 
represent  the  State  in  Congress,  is  on  the  second 
Tuesday  after  its  meeting  and  organization,  to 
elect  a  Senator  in  the  manner  pointed  out  by 
that  act.  Provisions  are  also  made  for  filling 
vacancies. 

Congress  is    required    to    assemble   at    least  Day  of  meeting 
once  in  eacli  year  on  the  first  Monday  in  D^- °^  *^^°^'^^®^* 
cember,  unless  it   appoints    by  law  a   different 
day.     In  1867  it  was  enacted  that  there  should 
be  a  meeting  of  the  Fortieth  Congress  and  of 
each  succeeding  Congress  on  the  day  on  which 

1  Acts  of  August  30,  1856,  11  Stat.  150,  c.  30  ;  July  14,  1862,  12 
Stat.  572,  c.  170  ;  March  11,  1868,  15  Stat.  41,  c.  25  ;  February  2, 
1872,  17  Stat.  28,  c.  11;  Rev.  Stat.  §  23. 

2  Act  of  February  2,  1872,  17  Stat.  28,  c.  11. 

8  Rev.  Stat.  §  25.  *  lb.  §  26.  5  ib.  §  27. 

6  Act  of  July  25,  1866, 14  Stat.  243,  c.  245. 

7  Rev.  Stat.  §§  14-19. 


614 


SUPPLEMENTARY. 


Lecture  XIII. 
Suppleineiitury. 
Day  of  meeting 
of  Congress. 


Paragraph  2, 
section  5. 


the  term  begins  for  which  the  Congress  is 
elected  (March  4)  ;  ^  but  this  act  was  repealed 
in  1871.- 

The  House  is  the  judge  of  the  election  re- 
turns and  qualifications  of  its  own  members.  A 
majority  constitutes  a  quorum,  but  a  less  num- 
ber may  adjourn  from  day  to  day.^ 

The  second  paragraph  of  section  5  confers 
upon  each  House  the  power  "  to  determine  the 
Rules  of  its  Proceedings,  punish  its  Members  for 
disorderly  Behaviour,  and,  with  the  Concurrence 
of  two-thirds,  expel  a  Member."  We  have 
already  seen,  in  the  comments  on  Kilbourn 
V.  Thoin])8on^  ante,  412,  that  the  House,  not 
being  a  judicial  body,  cannot  convict  for  con- 
tempt, and  cannot  punish  persons  wdio  are  not 
members.  The  opinion  in  that  case  was  written 
by  Mr.  Justice  Miller.  It  practically  overruled 
Anderson  v.  Dunn!' 

The  other  provisions  in  that  section  are,  that 
each  House  shall  keep  a  journal,  which  shall  be 
made  public  unless,  in  its  judgment,  secrecy  is 
required  ;  that  the  yeas  and  nays  may  be  called 
for  by  one-fifth  of  the  members  present,  and 
that  neither  House,  without  the  consent  of  the 


1  Act  of  January  22,  1867,  14  Stat.  378,  c.  10. 

2  Act  of  April  20,  1871,  14  Stat.  12,  c.  21,  §  30. 

8  Rule  XV,  paragraph  3.  "On  the  demand  of  any  member,  or 
at  the  suggestion  of  tlie  Speaker,  the  names  of  members  sufficient 
to  make  a  quorum  in  the  hall  of  the  House  who  do  not  vote  shall 
be  noted  by  the  clerk  and  recorded  in  the  journal,  and  reported  to 
the  Speaker  with  the  names  of  the  members  voting,  and  be  counted 
and  announced  in  determining  the  presence  of  a  quorum  to  do 
business." 

*  103  U.  S.  168.  6  6  Wheat.  204. 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  GL 

other,  shall  adjourn  for  more  than  three  days,  i.fxtuuk  xiii. 
or  to  any  other  place  than  that  in  which  the  «"i'Pit-.nentary. 

"J  A  i'arafrrapli  2, 

two  Houses  shall  be  sitting.  sections. 

Section  6  relates  to  the  compensation  and  Section «. 
privileges  of  members.  The  former  is  to  be 
deteruiined  by  law,  and  the  latter  includes  privi- 
lege from  arrest  ^  in  all  cases  except  treason, 
felony,  and  breach  of  the  peace  during  attend- 
ance at  a  session  of  Congress,  going  there  and 
returning  thence ;  and  also  exemption  from 
being  questioned  elsewhere  for  speeches  in  de- 
bate. It  also  provides  that  no  member  can  hold 
an  office  created  or  of  which  the  emoluments 
were  increased  during  the  time  for  which  he 
was  elected,  and  that  no  person  can  hold  an 
office  under  the  United  States,  and  be  at  the 
same  time  a  member  of  either  House  of  Con- 
gress. 

2.   Powers  conferred  on  Congress  hy  Article  I, 
Section  8. 

A.     Power  to  enact  Bankrupt  Laws. 

Article  I,  section  8,  conferring  on  Congress  Bankruptcy, 
power  "to  establish  .  .  .  uniform  laws  on  the 
subject  of  Bankruptcies  throughout  the  United 
States  "  was  added  to  the  draft  of  the  Constitu- 
tion as  late  as  September  1,  1787,  and  on 
Monday,  the  3d  September,  it  was  adopted, 
Connecticut  alone  voting  in  the  negative.  Mr. 
Sherman  of  Connecticut  gave  as  the  reason  for 
his  opposition  "  that  bankruptcies  w^ere,  in  some 

1  See  Cox  v.  McClenachan,  3  Dall.  478. 


616 


SUPPLEMENTARY. 


Lecture  XIII. 
Supplementary. 
Bankruptcy. 


cases  punishable  with  death  by  the  laws  of 
England,  and  he  did  not  choose  to  grant  a  power 
by  which  that  might  be  done  here."  The  power 
to  enact  a  bankrupt  law  was  first  exercised  in 
1800.^  In  1803  that  law  was  repealed.^  In 
1841^  it  was  again  exercised  by  an  act  which 
w^as  repealed  in  1843."^  It  was  again  exercised 
in  1867  ^  by  an  act  which,  after  being  several 
times  amended,*^  was  finally  repealed  in  1878.^ 
The  grant  of  this  power  to  Congress  does  not 
divest  the  several  States  of  the  right  to  enact 
insolvent  laws  in  the  nature  of  bankrupt  laws, 
both  voluntary  and  involuntary,  and  to  provide 
for  the  settlement  of  estates  of  insolvent  persons 
by  process  of  law,  the  distribution  of  their  pro- 
ceeds and  the  discharge  of  the  debtors ;  but  such 
exercise  of  power  by  a  State  is  subject  to  be 
suspended  by  the  enactment  of  a  bankrupt  law 
by  Congress,  and  will  remain  suspended  so  long 
as  such  a  law  is  in  force  ;  and  a  discharge  so 
obtained  through  State  proceedings  does  not 
operate  upon  the  claim  of  a  citizen  of  another 
State  who  has  not  proved  his  debt.^ 


1  Act  of  April  4,  1800,  2  Stat.  19,  c.  19. 

2  Act  of  December  19,  1803,  2  Stat.  248,  c.  6. 

3  Act  of  August  19,  1841,  5  Stat.  440,  c.  9. 

4  Act  of  March  3,  1843,  5  Stat.  614,  c.  82. 

6  Act  of  March  2,  1867,  14  Stat.  517,  c.  176. 

6  Act  of  July  27,  1868,  15  Stat.  227,  c.  258  ;  Act  of  February  13, 
1873, 17  Stat.  436,  c.  135  ;  Act  of  March  3,  1873,  17  Stat.  509,  c.  226, 
§  4  ;  Act  of  June  8,  1872,  17  Stat.  334,  c.  339  ;  Act  of  March  3, 
1873, 17  Stat.  577,  c.  235  ;  Act  of  June  22,  1874,  18  Stat.  178,  c.  390  ; 
Act  of  July  26,  1876,  19  Stat.  102,  c.  234. 

T  Act  of  June  7,  1878,  20  Stat.  99,  c.  160. 

8  Boese  v.  King,  108  U.  S.  379;  Baldwin  v.  Hale,  1  Wall.  223. 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  617 

B.    CobuKje:  liilh  of  Credit:    Weiyhts  and  Measures. 

Mr.  Pinckney's  draft  proposed  to  confer  upon  lecture  xiil 
Congress  the  •'  power  to  borrow  money  and  emit  cXagr^^^'^' 
bills  of  credit,"  the  power  "  to  coin  money  and 
regulate  the  value  of  all  coins,"  and  the  power 
"  to  fix  the  standard  of  weights  and  measures." 
In  the  discussions  the  power  "  to  emit  bills  of 
credit  "  was  stricken  out  by  a  vote  of  nine  States 
to  two.  Otherwise,  with  some  change  of  lan- 
guage, these  powers  were  placed  by  the  Conven- 
tion in  the  Constitution. 

That  draft  also  contained  a  clause  forbidding:  Bills  of  credit. 
States  to  emit  bills  of  credit.     The  Constitution, 
as   completed,    goes    beyond   this.     It   provides 
that  "  No  State  shall  .  .  .  coin  money,  emit  bills 
of  credit,"  etc. 

The  people  of  the  United  States  had  greatly 
suffered  from  the  over-issues  of  bills  of  credit 
having  the  character  of  legal  tender,  by  the 
States,  and  the  Convention  made  it  clear  that 
the  power  to  make  such  issues  in  the  future  was 
to  be  taken  away  from  them,  as  well  as  the 
power  to  coin  money. ^ 

The  authority  to  fix  the  standard  of  weights  weights  and 
and  measures  has  been  exercised  by  Congress  °^^''^^"''®^- 
only  partially.  It  has  provided  a  standard  troy 
pound  for  the  regulation  of  the  coinage,^  and 
it  has  authorized  the  use  of  the  metric  system 
throughout  the  United  States.^  Otherwise  each 
State  regulates  this  subject  for  itself. 

1  See  ante,  pp.  138, 139.  2  Rev.  Stat.  §  3548. 

3  Rev.  Stat.  §§  3569,  3570. 


618 


SUPPLEMENTARY. 


Lecture  XIII. 
Supplementary. 
C^nuterfeitiug. 


C.    Punishment  for  Counterfeiting. 

The  Constitution  further  confers  upon  Con- 
gress the  power  '••  to  provide  for  the  punishment 
of  counterfeiting  the  securities  and  current  coin  of 
the  United  States."  It  is  held  that  tliis  grant 
of  power  does  not  prevent  a  State  from  enacting 
laws  to  punish  counterfeiting ;  and  that,  being 
bound  to  protect  to  other  nations  rights  secured 
to  them  by  the  law  of  nations,  Congress  has  the 
power  to  enact  laws  punishing  the  counterfeiting 
of  foreign  securities.^ 


Post-office  and 
Post-roads. 


D.  Post-office  and  Post-roads. 

Section  8,  paragraph  7,  confers  power  to  "es- 
tablish Post-offices  and  Post-roads."  Mr.  Pinck- 
ney's  draft  proposed  to  confer  authority  "  to 
establish  post-offices,"  without  conferring  any 
power  over  the  means  of  maintaining  communi- 
cation between  them.  The  essential  words  "  and 
post-roads,"  under  which  the  mail  service  of  the 
country  is  carried  on,  were  added  during  the 
discussion.  Post  routes  are  established  by  law, 
and  the  compensation  for  carriage  over  them 
fixed  in  the  same  way.  And  when  a  part  of  an 
established  route  is  found  to  be  impracticable, 
by  reason  of  being  almost  or  quite  impassable, 
the  Post-office  Department  may  change  that 
part  without  thereby  creating  a  new  route,  not 
authorized  by  law.^ 

In  one  notable  case  Congress  practically  ter- 

1  United  States  v.  Arjona,  120  U.  S.  479. 

2  United  States  v.  Barlow,  132  U.  S.  271. 


I 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  G19 

minated  an  important  suit  in  equity  by  the  lecture  xiii. 
exercise  of  this  power. ^  The  State  of  Virginia,  p"^'J!oi™crau7 
having  authorized  a  corporation  to  construct  a  I'ost-roads. 
bridge  across  the  Ohio  River  at  Wheeling,  the 
State  of  Pennsylvania  filed  a  bill  in  equity  in 
the  Supreme  Court  of  the  United  States  to  enjoin 
its  construction,  upon  the  ground  that  it  was  an 
unconstitutional  obstruction  of  a  navigable  river. 
As  a  result  of  proceedings,  which  are  reported 
in  several  volumes  of  Howard,  a  writ  of  injunc- 
tion issued  from  that  court  in  June,  1854. 
Counsel  then  brought  to  the  attention  of  the 
court  that,  in  the  Post-office  Appropriation  Act 
of  1852,^  the  bridge  in  controversy  had  been 
declared  to  be  a  lawful  structure,  and  to  be  an 
*'  established  post-road  for  the  passage  of  the 
mails  of  the  United  States."  The  court  said : 
"  So  far  as  this  bridge  created  an  obstruction  to 
the  free  navigation  of  the  river,  in  view  of  the 
previous  acts  of  Congress,  they  are  to  be  regarded  • 
as  modified  by  this  subsequent  legislation ;  and, 
although  it  may  still  be  an  obstruction  in  fact, 
is  not  so  in  the  contemplation  of  law.  .  .  .  We 
do  not  enter  upon  the  question  whether  or  not 
Congress  possesses  the  power  under  the  authority 
in  the  Constitution  to  establish  '  post-offices  and 
post-roads,'  to  legalize  this  bridge ;  for,  conced- 
ing that  no  such  powers  can  be  derived  from 
this  clause,  it  must  be  admitted  that  it  is,  at 
least,   necessarily  included    in   the   power   con- 

1  Fennsijlvania  v.   mieeling  and  Belmont  Bridge  Co.,  9  How. 
647;  11  How.  528  ;  13  How.  518  ;  18  How.  421. 

2  Act  of  August  31,  1852,  10  Stat.  110,  112,  c.  Ill,  §§  6,  7, 


620 


SUPPLEMENTARY. 


1>KCTURE   XIII. 

Supplementary. 
Post-office  and 
Post-roads. 


Copyrights. 


ferred  to  regulate  commerce  among  the  several 

States."  ^ 

E.     Copyright,  Patents  and  Trade  Marks. 

Article  I,  section  8,  paragraph  8.  "To  pro- 
mote the  progress  of  Science  and  useful  Arts,  by 
securing  for  limited  Times  to  authors  and  In- 
ventors the  exclusive  Right  to  their  respective 
Writings  and  Discoveries."  In  regard  to  copy- 
rights, Congress  early  exercised  the  power  thus 
conferred,^  and  still  does  so.  It  is  held  that  an 
author's  right  of  property  in  his  published  works 
exists  only  under  the  provisions  of  the  statutes 
thus  enacted.^ 

The  Act  of  March  3,  1891,  amending  the 
Revised  Statutes,  authorizes  a  copyright  to  be 
granted  to  a  foreigner;  but  it  provides  in  sec- 
tion 13  that  "  this  act  shall  only  apply  to  a  citi- 
zen or  subject  of  a  foreign  state  or  nation,  when 
such  foreign  state  or  nation  permits  to  citizens 
of  the  United  States  of  America  the  benefit  of 
copyright  on  substantially  the  same  basis  as  its 


1  Pennsylvania  v.  WJieeling  and  Belmont  Bridge  Co.,  18  How. 
421,  430. 

2  Act  of  May  31,  1790,  1  Stat.  124,  c.  15  ;  Act  of  April  29,  1802, 
2  Stat.  171,  c.  36  ;  Act  of  February  3,  1831,  4  Stat.  436,  c.  16;  Act 
of  August  10,  1846,  9  Stat.  106,  c.  178,  §  10  ;  Act  of  March  3,  1855, 
10  Stat.  685,  c.  199,  §  5;  Act  of  August  18,  1858,  11  Stat.  138, 
c.  169  ;  Act  of  February  5,  1859,  11  Stat.  380,  c.  22,  §  8 ;  Act  of 
February  18,  1867,  14  Stat.  395,  c.  43  ;  Act  of  July  8,  1870,  16  Stat. 
198,  c.  230,  §§  85-110  ;  Rev.  Stat.  §§  4948-4071  ;  Act  of  June  18, 
1874,  18  Stat.  78,  c.  301  ;  Act  of  March  3,  1879,  20  Stat.  359,  c.  180, 
§  15  ;  Act  of  August  1,  1882,  22  Stat.  181,  c.  366. 

3  WheatonY.  Peters,  8  Pet.  591.  See  al.so  Banks  v.  Manchester, 
128  U.  S.  244  ;  Callaghan  v.  Myers,  128  U.  S.  617  ;  and  Burroio-GUes 
Lithographic  Co.  v.  Sarony,  111  U.  S.  53. 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  G21 

own    citizens ;    or   when  such   foreign    state   or  lf.ctuue  xiii. 
nation  is  a  party  to  an  international  a£!;reement  ^"ppi«"'en»ary 

^'-         "^  "^  Lopy  rights. 

which  provides  for  reciprocity  in  tlie  granting  of 
copyright,  by  the  terms  of  which  agreement  the 
United  States  of  America  may,  at  its  pleasure, 
become  a  part}^  to  such  agreement."  ^ 

Legislation  was  also  had  upon  the  subject  of  Patents, 
patents  for  inventions  in  the  First  Congress. 
The  act  was  entitled  "  An  act  to  promote  the 
progress  of  useful  arts."  ^  As  in  the  case  of 
copyrights,  etc.,  so  here,  after  changes  and  amend- 
ments, the  statutes  were  consolidated  in  1871* 
into  one  statute  which  embraced  the  three  sub- 
jects of  Patents,  Copyrights  and  Trade  Marks, 
and  from  thence  was  codified  into  the  Revised 
Statutes.^  The  law  as  thus  codified  has  been 
since  amended.^ 

It  has  been  held,  over  and  over  again,  that 
unless  a  machine  is  novel,  and  unless  it  called 
for  the  inventive  faculty  to  produce  it,  as  dis- 
tinguished from  what  existed  before  it,  it  is  not 
patentable.  It  is  also  held  that  the  discovery 
that  a  force  of  nature  can  be  applied  to  a  useful 
result  is  not  patentable,  unless  some  practicable 
way  is  pointed  out  for  its  application.^ 

The  subject  of  trade  marks  is  now  classified  Trade  marks, 
with  copyrights  and  patents  in  the  legislation  of 

1  26  Stat.  1100,  c.  565. 

2  Act  of  April  10,  1890,  1  Stat.  109,  c.  7. 

3  Act  of  July  8,  1870,  10  Stat.  198,  c.  230,  §§  1-76. 

4  Revised  Stat.  §§  4883-4930. 

5  Act  of  February  4,  1887,  24  Stat.  387,  c.  105. 

«  O'Reilly  v.  Morse,  15  How.  62 ;  The  Telephone  Cases,  126 
U.  S.  1. 


G22 


SUPPLEMENTARY. 


Lecture  XIII. 
Supplementary. 
Trade  marks. 


Congress,  already  referred  to,  subsequent  to 
1869.  In  the  Trade  Mark  Cases,^  which  were 
decided  at  October  Term,  1879,  this  legislation 
was  before  the  Supreme  Court,  and  it  was  held 
that  a  trade  mark  being  "  neither  an  invention, 
a  discovery,  nor  a  writing,  within  the  meaning 
of  the  eighth  clause  of  the  eighth  section  of  the 
First  Article  of  the  Constitution,  and  the  legisla- 
tion respecting  it  not  being  limited  to  the  use  of 
trade  marks  in  '  commerce  with  foreign  nations 
and  among  the  several  States,  and  with  the 
Indian  tribes,'  "  it  was  "  void  for  want  of  con- 
stitutional authority." 

But,  although  the  right  of  property  in  it 
might  not  have  been  derived  from  legislation  of 
Congress  under  its  constitutional  powers,  it  was 
clear,  and  was  so  held,  that  the  right  to  such 
property  had  long  been  recognized  by  the 
common  law  and  by  the  Chancery  courts  of 
England.  Congress  at  once  legislated  under  the 
powers  conferred  u^ion  it  by  the  commerce  clause 
of  the  Constitution.^  The  title  to  such  property 
is  now  sustained  when  the  person  who  asserts 
ownership  in  it  shows  a  just  claim  to  protection.^ 


F.     Piracies^  and  Felonies  on  the  High  Seas. 

Piracy,  etc.  Article  I,  scction  8,  paragraph  10,  authorizes 

Congress    "  to   define   and  punish   Piracies  and 


1  Trade  Mark  Cases,  100  U.  S.  82,  92. 

2  Act  of  March  3,  1881,  21  Stat.  502,  c.  138;  Act  of  August  5, 
1882,  22  Stat.  298,  c.  393. 

3  Canal  Co.  v.  Clark,  13  Wall.  311;  Menendez  v.  Holt,  128  U.  S. 
514  ;  Corbin  v.  Goidd,  133  U.  S.  308  ;  Liggett  and  Myers  Tobacco 
Co.  V.  Fimer,  128  U.  S.  514. 


SUBJECTS    NOT    DISCUSSED   ELSEWHERE.  G23 

Felonies  committed  on  the  high  Seas,  and  LEm'RK  xtti. 
Offences  against  the  Law  of  Nations."  The  p-",';,^Jy'"'j"*'^'^^' 
Articles  of  Confederation  conferred  power  "  to 
appoint  courts  for  the  trial  of  piracies  and  fel- 
onies committed  on  the  high  seas."  The  Vir- 
ginia draft  extended  this  power  by  providing 
that  Congress  might  "  declare  the  law  and  pun- 
ishment of  piracies  and  felonies  at  sea  ; "  and 
the  Constitution,  as  adopted,  adds  to  those  "  of- 
fences against  the  law  of  nations."  A  foreign 
vessel,  "  by  assuming  a  piratical  character,  is  no 
longer  included  in  the  description  of  a  foreign 
vessel ; "  and  the  vessel,  if  the  piratical  act  be 
committed  "  in  an  open  road,  may  well  be  found 
by  a  jury  to  be  on  the  seas."  ^ 

The  provisions  in  the  Act  of  Congress  of  Au- 
gust 18, 1856,  codified  in  Title  72  of  the  Revised 
Statutes,  which  authorize  the  President  to  declare 
guano  islands  to  be  "  appertaining  to  the  United 
States,  and  which  provide  that  crimes  and 
offences  committed  on  such  islands  shall  be 
deemed  to  have  been  done  or  committed  on  the 
high  seas  on  board  a  merchant  ship  or  vessel 
belonging  to  the  United  States,  and  be  punished 
according  to  the  laws  of  the  United  States  relat- 
ing to  such  ships  or  vessels  and  offences  on  the 
high  seas,"  was  lately  before  the  Supreme  Court 
for  construction.  It  was  held  that  that  act  did 
"  not  assume  to  extend  the  admiralty  jurisdic- 
tion over  land,  but  merely  extends  the  provisions 
of  the  statutes  of  the  United  States  for  the  pun- 

1  United  States  v.  TJie  Pirates,  5  Wheat.  184,  198,  200^ 


624  SUPPLEMENTARY. 

Lecture  XIII.    ishment  of  offencGs  upon  the  higli  seas  to  like 
Supplementary,    ^f^gj^j^gg  ^^^q^  cruano  islands,  wliicli  the  President 

Piracy,  etc.  ^         o  ' 

has  determined  should  be  considered  as  apper- 
taining to  the  United  States  ;"  and  that  a  person 
charged  with  the  offence  of  "  murder  committed 
on  a  guano  island,  which  has  been  determined 
by  the  President  to  appertain  to  the  United 
States,  may  be  tried  in  the  courts  of  the  United 
States  for  the  district  into  which  the  offender  is 
first  brought."  ^ 

G.     The  National  Defence. 

National  defence.  Article  I,  scction  8,  paragraphs  11,  12,  13, 
14,  15,  and  16  conferred  upon  Congress  power 
"  to  declare  War,  grant  Letters  of  Marque  and 
Reprisal,  and  make  Rules  concerning  Captures 
on  Land  and  Water;  to  raise  and  support 
Armies,  but  no  Appropriation  of  Money  to  that 
Use  shall  be  for  a  longer  Term  than  two  Years ; 
to  provide  and  maintain  a  Navy  ;  to  make  Rules 
for  the  Government  and  Regulation  of  the  land 
and  naval  Forces ;  to  provide  for  calling  forth 
the  Militia  to  execute  the  Laws  of  the  Union, 
suppress  Insurrections  and  repel  Invasions ;  to 
provide  for  organizing,  arming,  and  disciplining 
the  Militia,  and  for  governing  such  Part  of  them 
as  may  be  employed  in  the  Service  of  the  United 
States,  reserving  to  the  States  respectively,  the 
Appointment  of  the  Officers,  and  the  Authority 
of  training  the  Militia  according  to  the  Discipline 
prescribed  by  Congress." 

1  Jones  V.  United  States,  137  U.  S.  202. 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  625 

These  provisions  relating  to  tlie  means  of  lecture  xhl 
national  defence  and  self-protection  are  simple,  ^atfonar'defence. 
and  the  most  natural  division  of  powers  in  a 
Federal  Government.  The  provision  as  to 
appropriations  for  paying  the  land  forces  was 
not  in  eitlun-  draft.  It  was  put  in  hy  the  Con- 
vention, undoubtedly  prompted  by  the  same 
jealousy  of  executive  power  which  had  estab- 
lished a  similar  custom  in  Great  Britain.  The 
Pinckney  draft  gave  the  United  States  power 
"  to  subdue  a  rebellion  in  any  State  on  applica- 
tion of  its  legislature,  and  to  call  forth  the  aid 
of  the  militia,"  not  only  "to  execute  the  laws  of 
the  Union,"  '•  enforce  treaties,"  and  "  repel  inva- 
sions," but  also  "  to  suppress  insurrections." 

In  the  w^ar  of  1812  the  right  of  the  President 
to  order  State  militia  to  duty  outside  the  State 
was  denied  by  the  State  of  Massachusetts ;  but,  in 
the  much  greater  war  of  the  rebellion,  the  militia 
of  most  of  the  Northern  States  was  more  than 
once  ordered  on  duty  outside  of  its  o^vn  State, 
and  responded  without  question  or  hesitation. 

The  power  over  the  militia  thus  reserved  to 
the  States  is  so  complete  that  a  State  may, 
unless  restrained  by  its  own  constitution,  enact 
laws  to  prevent  any  body  of  men  whatever,  other 
than  the  regularly  organized  volunteer  militia  of 
the  State,  and  the  troops  of  the  United  States, 
from  associatino;  themselves  toQ;ether  as  a  mili- 
tary  company  or  organization,  or  to  drill  or 
parade  with  arms  in  any  place  within  the  State, 
without  the  consent  of  the  governor  of  the  State.^ 

1  Presser  v.  Illinois,  116  U.  S.  262. 


G26  SUPPLEMENTARY. 

Lecture  XIII.  The  power  to  declare  war,  and  thus  make 
NSfon^dSence.  ^ctive  use  of  the  other  powers  necessary,  found 
its  place  in  the  Constitution  from  necessity. 
There  could  be  no  sovereignty  without  it.  But 
the  necessity  for  such  active  use  can  be  made 
equally  necessary  by  a  declaration  of  war  against 
the  United  States,  as  in  the  case  of  the  war  with 
Mexico,  or  by  an  active  war  against  it,  as  in  the 
war  of  the  rebellion. 

A  state  of  war  does  not  change  the  relation 
of  a  citizen  to  his  government,  or  displace  the 
civil  authorities  outside  the  theatre  of  conflict  ;^ 
what  it  may  do  there  depends  upon  the  circum- 
stances and  exigencies  of  the  case.^ 

H.     llie  District  of  Columbia. 

District  of  Coium-      Article  I,  section  8,  paragraph  17,  authorizes 
^^^'  Congress   "  to  exercise  exclusive  Legrislation  in 

all  Cases  whatsoever,  over  such  District  (not 
exceeding  ten  Miles  square)  as  may,  by  Cession 
of  particular  States,  and  the  Acceptance  of  Con- 
gress, become  the  Seat  of  the  Government  of  the 
United  States,  and  to  exercise  like  Authority 
over  all  Places  purchased  by  the  Consent  of 
the  Legislature  of  the  State  in  which  the 
Same  shall  be,  for  the  Erection  of  Forts,  Maga- 
zines, Arsenals,  Dock  Yards  and  other  needful 
Buildings." 

Under  this  authority  the  cession  of  the  Dis- 
trict of  Columbia  was  made  to  the  United  States 


1  Ex  parte  MiUigan,  4  Wall.  2. 

2  Mitchtl  V.  Harmony,  13  How.  115. 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  627 

by  the  States  of  Maryland  and  Virginia.^  The  lecture  xiii. 
portion  ceded  by  Virginia  was  subsequently  ^jj;^;5'Jj;'^7^^^^ 
retroceded  to  that  State.^  The  local  laws  of  bia. 
each  State  existing  at  the  time  of  the  cession 
remained  in  force,  so  far  as  they  affected  rights 
of  property,  and  except  as  changed  by  Congress.' 
The  municipal  forms  of  government  in  the  sev- 
eral municipalities  also  continued,  except  as 
changed  by  Congress.  For  a  short  time  a  Terri- 
torial government  was  put  in  operation  in  the 
District,*  but  this  was  soon  discontinued,^  and 
the  District  is  now  only  a  municipal  corporation.^ 
A  most  competent  authority  has  questioned  the 
power  of  Congress  to  delegate  the  legislative 
authority  once  acquired  through  this  clause  of 
the  Constitution.^ 


3.   Restrictions  in  Sectio7i  9  upon  the  Power  of 
Congress. 

A.   The  African  Slave  Trade. 

Article  I,  section  9.     This  section  is  entirely  slave  trade, 
taken  up  with  statements  of  what  Congress  may 
not  do.     All  the  important  provisions  in  it  have 

1  Act  of  July  16,  1700,  1  Stat.  130,  c.  28;  Act  of  March  3, 1791, 
1  Stat.  214,  c.  17;  Proclamation  of  President  Washington,  January 
24,  1791,  11  Stat.  751. 

2  Act  of  July  9,  1840,  9  Stat.  35,  c.  35;  President  Polk's  procla- 
mation of  September  7-,  184G,  9  Stat.  1000. 

3  Thaw  V.  Ritchie,  136  U.  S.  519. 

*  Act  of  February  21,  1871,  16  Stat.  419,  c.  62. 
6  Act  of  June  20,  1874,  18  Stat.  116,  c.  337. 
6  Metropolitan  Bailroad  Co.  v.  District  of  Cohimhia,  132  U.  S. 
See  Geofroy  v.  Rujgs,  133  U.  S.  258. 

'  Cooley's  Principles  of  Constitutional  Law,  90,  91. 


628 


SUPPLEMENTARY. 


Lecture  XIII. 
Supplementary. 
Slave  trade. 


been  treated  by  Mr.  Justice  Miller.  It  only 
remains  to  notice  a  few  of  the  less  important 
ones.  Paragraph  1  provides  that  "  The  Migra- 
tion of  Importation  of  such  Persons  as  any  of 
the  States  now  existing  shall  think  proper  to 
admit,  shall  not  be  prohibited  by  the  Congress 
prior  to  the  Year  one  thousand  eight  hundred 
and  eight,  but  a  Tax  or  Duty  may  be  imposed 
on  such  Importation,  not  exceeding  ten  dollars 
for  each  Person."  This  is  a  euphonious  way  of 
referring'  to  the  African  slave  trade,  and  it  was 
a  settlement  by  compromise  of  a  question  which 
caused  some  trouble  in  the  Convention.  The 
capitation  tax  was  never  imposed  ;  and,  on  the 
2d  of  March,  1807,  Congress  prohibited  the  im- 
portation of  slaves  into  any  port  or  place  within 
the  jurisdiction  of  the  United  States  from  and 
after  January  1,  1808.^ 


B.     Direct  Taxes. 

Direct  taxes.  Paragraph  4.      "No    Capitation,    or     other 

direct  Tax,  shall  be  laid,  unless  in  Proportion 
to  the  Census  or  Enumeration  hereinbefore  di- 
rected to  be  taken."  It  has  been  held  by  the 
Supreme  Court,  in  construing  this  clause  of  the 
Constitution,  that  "  only  capitation  taxes  as 
expressed  in  that  instrument,  and  taxes  on  real 
estate"  are  direct  taxes.^  The  same  authority 
has  settled  that  a  carriage  tax,^  or  an  income 


1  Act  of  March  2,  1807,  2  Stat.  426,  c.  22. 

2  Springer  v.  United  States,  102  U.  S.  586. 

3  HyltoH  V.  United  States,  8  Dall.  171. 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  G29 

tax/  or  a  tax  on  the  circulation  of  banks,"  or  an  lfxture  xni. 
internal  revenue  license  tax,^  is  not  a  direct  tax  ^"i'P'c'n«"''i'"y- 

'  Direct  taxes- 

witliin  the  meaning  of  the  Constitution.  In 
*1861  Congress  resorted  to  this  mode  of  taxa- 
tion, and  enacted  "  that  a  direct  tax  of  twenty 
millions  of  dollars  be,  and  is  hereby,  annually 
laid  upon  the  United  States  ;*  but  in  1862,  after 
one  such  tax  had  been  assessexl,  it  was  sus- 
pended until  April  1,  1865.'  And  in  1864  it 
was  suspended  until  Congress  should  enact  an- 
other law  requiring  it.''  No  such  law  was 
Enacted ;  and  during  the  late  session  of  Congress 
the  sums  collected  under  the  act  of  1861  were 
restored  to  the  States  which  paid  them  J 

4.    Article  II.     The  President. 

Section  1,  paragraph  5.  This  paragraph  con- succession  on  the 
fers  upon  the  Vice-President  the  powers  and  ^^^^^  "^  *  ^^^^ 
functions  of  the  President,  in  case  of  his  removal, 
death,  resignation,  or  inability.  It  was  called 
into  play  four  times  during  the  first  century  of 
the  Government  —  twice  in  consequence  of  the 
assassination  of  the  President.  The  paragraph 
also  authorizes  Congress  to  declare  what  officer 
shall  act  as  President  in  case  of  the  removal, 
etc.,  of  both  President  and  Vice-President.     The 


1  PacAfic  Insttrance  Co.  v.  Soule,  7  Wall.  433. 

2  Veazie  Bank  v.  Fenno,  8  Wall.  533. 

3  License  Tax  Cases,  5  Wall.  4G2. 

*  Act  of  August  5,  1861,  12  Stat.  c.  45,  §  8,  p.  294. 

6  Act  of  July  1,  1802,  12  Stat.  c.  110,  §  119,  p.  489. 
«  Act  of  June  30,  1864,  13  Stat.  c.  173,  §  173,  p.  304. 

7  Act  of  March  2,  1891,  26  Stat.  822,  c.  49G. 


630  SUPPLEMENTARY. 

Lecture  xiii.    latest  action  of  Congress  in  this  matter  confers 
Supi.iementary     ^j^g  power  and  dutv  in  such  case,  first  upon  the 

Succession  on  the  -t^  -^  '  -i 

deatii  of  a  Piesi-  Secretary  of  State ;  then  upon  the  Secretary 
of  the  Treasury ;  then  upon  the  Secretary  of 
War ;  then  upon  the  Attorney  General ;  then 
upon  the  Postmaster  General ;  then  upon  the 
Secretary  of  the  Navy ;  and,  lastly,  upon  the 
Secretary  of  the  Interior.^  In  the  time  of 
Washington  the  Secretary  of  State,  then  called 
Secretary  for  Foreign  Affairs,  was  the  ranking 
officer  of  the  Cabinet.  The  others  ranked  ac- 
cording to  the  creation  of  the  department  over 
which  each  j)resided.  Jefferson  followed  this  rule 
in  all  the  departments,  thus  giving  the  Secretary 
of  State  the  ranking  place.  The  rule  has  beeii 
steadily  adhered  to  since,  until  Congress,  for 
some  unknown  reason,  gave  to  the  Attorney 
General  and  the  Postmaster  General  precedence 
over  the  Secretary  of  the  Navy  in  this  statute. 

Oath  of  office.  Paragraph   7   of  this   section   relates   to    the 

oath  of  office  to  be  taken  by  the  President.  This 
is  usually  taken  in  front  of  the  Capitol,  and  in 
the  presence  of  both  Houses  of  Congress.  In 
President  Hayes's  case,  however,  as  the  fourth 
of  March  fell  upon  Sunday,  it  was  deemed  wise, 
in  view  of  the  peculiar  circumstances,  to  have  it 
also  administered  at  the  Executive  Mansion  in 
advance  of  its  administration  at  the  Capitol  on 
the  fifth  of  March. 

1  Act  of  January  19,  1886,  24  Stat.  1,  c.  4. 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  631 

5.  Article  IV.  Interstate  relations  and  duties. 
The  Territories.  Repuhlican  form  of  Govern- 
ment. 

Article   III,  relating   to   judicial   power,  has  lecture  xiii. 
been  fully  treated  by  Mr.  Justice  Miller  in  Lec- 
tures VII  and  VIII,  leaving  nothing  furtber  to 
be   said.     We  will   confine   ourselves   therefore 
to  Article  IV. 

A.   Judicial  Proceedinga  and  Public  Acts  and  Records  of  a  State. 

Section  1 .  "  Full  Faith  and  Credit  shall  be  They  are  to  have 
given  in  each  State  to  the  Public  Acts,  Records,  credit"in' other 
and  judicial  Proceedings  of  every  other  State."  states. 
It  was  held  in  a  recent  case,  following  a  long 
line  of  decisions,  that  this  "  does  not  preclude 
inquiry  into  the  jurisdiction  of  the  court,  in 
which  a  judgment  is  rendered  over  tbe  subject 
matter  or  the  parties  affected  by  it,  nor  into  the 
facts  necessary  to  give  such  jurisdiction."  ^  In 
a  still  more  recent  case  ^  the  matter  came  up  in 
a  novel  form,  the  question  being  whether  a  judg- 
ment in  a  State  court  which  was  not  responsive 
to  the  pleadings,  rendered  against  a  defendant 
who  appeared,  but  took  no  part  in  the  subsequent 
litigation  which  ended  in  the  judgment,  estopped 
him  from  contesting  the  matter  on  the  merits  » 

in  an  action  brought  in  another  State.  The 
court  held  that  he  was  not  estopped,  and,  in  the 
course  of  its  opinion,  delivered  by  Mr.  Justice 
Brewer,  said  :  "  The  section  of  the  Federal  Con- 

^  Simmojis  v.  Saul,  138  U.  S.  439. 
2  Reynolds  v.  Stockton,  140  U.  S.  254. 


credit  in  otlier 
States. 


032  SUPPLEMENTARY. 

Lecture  XIII.     stitiitlon  whlcli  is  iiivoked  by  plaintiffs  is  sec- 
suppie.nentary.    ^-^^^  ^  ^f  Article  IV,  wliicli  puovides  that  '  full 

lliey  are  to  have  _   -^  _ 

full  faitii  ami  faitli  aiid  Credit  shall  be  given  in  each  State 
to  the  public  acts,  records,  and  judicial  proceed- 
ings of  every  otlier  State.'  Under  that  section 
the  full  faith  and  credit  demanded  is  only  that 
faith  and  credit  which  the  judicial  proceedings 
had  in  the  other  State  in  and  of  themselves 
require.  It  does  not  demand  that  a  judgment 
rendered  in  a  court  of  one  State,  without  the 
jurisdiction  of  the  person,  shall  be  recognized  by 
the  courts  of  another  State  as  valid,  or  that  a 
judgment  rendered  by  a  court  which  has  juris- 
diction of  the  person,  but  which  is  in  no  way 
responsive  to  the  issues  tendered  by  the  plead- 
ings and  is  rendered  in  the  actual  absence  of  the 
defendant,  must  be  recognized  as  valid  in  the 
courts  of  any  other  State.  The  requirements  of 
that  section  are  fulfilled  when  a  judgment  ren- 
dered in  a  court  of  one  State,  which  has  jurisdic- 
tion of  the  subject  matter  and  of  the  person,  and 
which  is  substantially  responsive  to  the  issues 
presented  by  the  pleadings,  or  is  rendered  under 
such  circumstances  that  it  is  apparent  that  the 
defeated  party  was  in  fact  heard  on  the  matter 
determined,  is  recognized  and  enforced  in  the 
courts  of  another  State.  The  scope  of  this  con- 
stitutional provision  has  often  been  presented 
to  and  considered  by  this  court,  although  the 
precise  question  here  presented  has  not  as  yet 
received  its  attention.  It  has  been  adjudged 
that  the  constitutional  provision  does  not  make 
a  judgment  rendered  in  one  State  a  judgment  in 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  G.j3 

another   State  upon   which   execution   or  other  lecture  xni. 
process  may  issue;  that  it  does   not   foibid   i^.  ;';"i'i>>«'"entary. 

,  ,  1  'icy  are  to  bavo 

quiry  in  the  courts  of  the  State  to  which  the  I'lii  faith  and 
judgment  is  presented,  as  to  the  jurisdiction  of  ^'^'^^gg'""'*^" 
the  court  in  which  it  was  rendered  over  tlie  per- 
son, or  in  respect  to  the  subject  matter,  or,  if 
rendered  in  a  proceeding  m  rem,  its  jurisdiction 
of  the  ?T.s'.  Without  referring  to  the  many 
cases  in  which  this  constitutional  ])rovision  has 
been  before  tliis  court,  it  is  enough  to  notice  the 
case  of  ThompsoH  v.  Wliitinan,  18  Wall.  457. 
The  view  developed  in  the  opinion  in  that  case, 
as  well  as  in  prior  opinions  cited  therein,  paves 
the  way  for  inquiry  into  the  question  here  pre- 
sented. If  the  fact  of  a  judgment  rendered  in 
a  court  of  one  State  does  not  preclude  inquiry 
in  the  courts  of  another,  as  to  the  jurisdiction 
of  the  court  rendering  the  judgment  over  the 
person  or  the  subject  matter,  it  certainly  also 
does  not  preclude  inquiry  as  to  whether  the 
judgment  so  rendered  was  so  far  responsive  to 
the  issues  tendered  by  the  pleadings  as  to  be  a 
proper  exercise  of  jurisdiction  on  the  part  of  the 
court  rendering  it." 

Another  recent  case^  is  instructive.  One 
Bird,  a  citizen  of  Massachusetts,  suspended  pay- 
ment March  2,  1885,  Aaron  Claflin  &  Co.,  a 
New  York  firm,  being  largely  indebted  to  him. 
Butler,  Hayden  &  Co.,  a  Boston  firm,  citizens  of 
Massachusetts,  had  a  claim  against  Bird  which, 
on  the   6th  of    March  they  assigned  to  Fayer- 

1  Cole  V.  Cnnniiujham,  133  U.  S.  107. 


634  SUPPLEMENTARY. 

Lecture  XIII.     weather,  a  citizen  of  New  York.    On  the  11th  of 
Supplementary.    ]yj.^j.(.|^  Faverweather  broiiolit  an  action  as  such 

Ihey  are  to  have  '^  '-' 

full  faith  and  assigncc  against  Bird  as  defendant,  and  Aarou 
states.*^  ^  ^^  Claflin  &  Co.  as  garnishees,  to  recover  the  amount 
of  the  assigned  claim.  On  the  25th  of  March 
another  similar  suit  was  commenced  by  Fayer- 
weather.  The  court  found  that  these  suits  "were 
brought  in  a  court  of  competent  jurisdiction,  and 
the  attachments  and  proceedings  were  regular 
and  in  conformity  with  the  laws  of  New  York." 
Subsequent  to  the  commencement  of  these 
suits  proceedings  were  had  against  Bird  under 
the  insolvent  laws  of  Massachusetts,  and  on  the 
1st  of  June,  1885,  assignees  were  duly  appointed, 
to  whom  the  insolvent's  property  was  assigned. 
It  was  stated  by  the  court  in  its  opinion  that 
"  under  these  insolvent  laws  all  preferences  were 
avoided,  and  all  attachments  in  favor  of  partic- 
ular creditors  dissolved." 

On  the  19th  of  June,  1885,  the  assignees 
filed  a  bill  in  equity  in  the  Supreme  Court  of 
Massachusetts,  to  restrain  Butler,  Hayden  & 
Co.  from  prosecuting  the  New  York  suits  to 
judgment  and  to  compel  them  to  transfer  to  the 
assignees  all  the  rights  assigned  to  Fayerweather. 
The  State  court  rendered  the  decree  prayed  for 
by  the  assignees  ;  and  that  judgment  being 
brought  to  the  Supreme  Court  of  the  United 
States  by  writ  of  error,  was  affirmed  by  a  major- 
ity of  the  court. 

The  opinion  of  the  court  was  delivered  by 
Chief  Justice  Fuller,  who,  in  an  opinion  review- 
ing the  authorities,  said  :  — 


SUBJECTS    NOT    DISCUSSED    ELSEAVHERE.  635 

"The  question  to  be  detennined  is,  whether  a  lecture  xiii. 
decree  of  the  Supreme  Judicial  Court  of  Massa-  ^"I'pi^'"'^"*'^- 

A  ihiiy  are  to  have 

chusetts,  restraining  citizens  of  that  Common-  fnn  faith  and 
wealth  from  the  prosecution  of  attachment  suits  states. 
in  New  York,  brought  by  them  for  the  purpose 
of  evading  the  laws  of  their  domicil,  should  be 
reversed  upon  tlie  ground  that  such  judicial 
action  in  Massachusetts  was  in  violation  of  Ar- 
ticle IV,  sections  1  and  2,  of  the  Constitution  of 
the  United  States.  .  .  .  The  Constitution  did 
not  mean  to  confer  any  new  power  upon  the 
States,  but  simply  to  regulate  the  effect  of  their 
acknowledged  jurisdiction  over  persons  and 
things  within  their  territory.  It  did  not  make 
the  judgments  of  the  States  domestic  judgments 
to  all  intents  and  purposes,  but  only  gave  a  gen- 
eral validity,  faith,  and  credit  to  them  as  evi- 
dence. No  execution  can  be  issued  upon  such 
judgments  without  a  new  suit  in  the  tribunals 
of  other  States,  and  they  enjoy,  not  the  right  of 
priority  or  privilege  or  lien  which  they  have  in 
the  State  where  they  are  pronounced,  but  that 
only  which  the  lex  fori  gives  to  them  by  its  own 
laws,  in  their  character  of  foreign  judgments. 
.  .  .  Great  contrariety  of  State  decision  exists 
upon  this  general  topic,  and  it  may  be  fairly 
stated  that,  as  between  citizens  of  the  State  of 
the  forum  and  the  assignee  appointed  under  the 
laws  of  another  State,  the  claim  of  the  former 
will  be  held  superior  to  that  of  the  latter  by  the 
courts  of  the  former ;  while,  as  between  the 
assignee  and  citizens  of  his  own  State  and  the 
State  of  the  debtor,  the  laws  of  such  State  will 


credit  in  other 
States. 


636  SUrPLEMENTARY. 

Lecture  XIII.     Ordinarily  be  applied  in  the  State  of  the  litiga- 
Suppiementary.    ^-^^   miless  forbiddeii  by,  or  inconsistent  with, 

They  are  to  have  ^  _  ^ 

full  faith  and  the  laws  or  policy  of  the  latter.  ...  In  the 
case  at  bar  the  attachment  suits  have  not  gone 
to  judgment,  and  the  assignees  in  insolvency 
have  proceeded  with  due  diligence  as  against 
these  creditors,  citizens  of  Massachusetts,  who 
are  seeking  to  evade  the  laws  of  their  own 
State  ;  nor  is  there  anything  in  the  law  or  pol- 
icy of  New  York  opposed  to  the  law  or  policy  of 
Massachusetts  in  the  premises." 

Mr.  Justice  Miller  delivered  a  dissenting  opin- 
ion in  which  Mr.  Justice  Field  and  Mr.  Justice 
Harlan  concurred.  He  said :  "  The  record  in- 
troduced from  the  court  of  New  York  in  this 
case  had  the  effect,  in  that  State,  to  give  Butler, 
Hayden  &  Co.  a  lien  on  the  indebtedness  of 
Aaron  Claflin  &  Co.  to  their  creditor.  Bird, 
which  in  that  court  w^ould  have  ripened  into  a 
judgment  and  been  enforced.  That  was  the 
faith  and  credit  which  the  laws  of  New  York 
gave  to  that  proceeding,  .  .  .  and  there  Avas  no 
power  in  the  courts  of  Massachusetts  to  inter- 
rupt the  course  of  these  proceedings  to  the  final 
result.  .  .  .  When,  therefore,  Butler,  Hayden  & 
Co.  were  sued  in  equity  in  the  courts  of  Massa- 
chusetts, and  there  was  produced  the  record  of 
these  proceedings  in  the  court  of  New  York,  the 
question  was  presented  to  the  courts  of  Massa- 
chusetts what  effect  they  would  give  to  those 
proceedings.  They  did  not  give  the  effect  which 
the  laws  of  New  York  gave  to  them.  ...  It  is 
no  answer  to  this  to  say  that  Butler,  Hayden  & 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  G37 

Co.   Avere   citizens   of   Massachusetts,  and   were  lecture  xiii. 
found  within  its  jurisdiction.     The  higher  law  IZT^roTZ.e 
of  the  Constitution  of  the  United  States  places  fuii  faith  and 
this  restraint  upon  the  courts  of  Massachusetts  stltla'"  ^  ^ 
in  dealing  even  with  her  own  citizens,  and  if 
her  citizens  have  obtained  rights  in  the  courts  of 
New  York  which   have  become   a   part  of  the 
records  and  judicial  proceedings  of  those  courts, 
no  matter  how  the  law  under  which  those  rights 
may  be  established  may  be  opposed  to  the  law 
of  the  State  of  Massachusetts,  they  are  to  be 
respected  by  the  courts  of  Massachusetts  because 
they  are  effectual  over  the  parties  and  subject 
matter  in  New  York,  and  because  the  Constitu- 
tion of  the  United  States  and  the  Act  of  Con- 
gress of  May  26,  1790,^  assert  the  principle  that 
the  courts  of  Massachusetts  must  give  full  credit, 
by  which  is  meant  the  same  effect  to  the  pro- 
ceedings in  New  York,  which  that  State  gives 
to  them." 

B.     Surrender  of  Fugitives  from  Justice. 

Article  IV,  section  2,  paragraph  2,  providing  Fugitives  from 
for  the  surrender  of  fugitives  from  justice,  is  J"^*^'^^- 
found  in  the  Articles  of  Confederation  in  sub- 
stantially the  same  language.  The  legislation 
of  Congress  upon  this  subject  will  be  found  in 
sections  5278,  5279,  of  the  Revised  Statutes. 
The  responsibility  of  determining  whether  the 
person  demanded  is  a  fugitive  from  the  justice 
of  the  demanding  State,  rests  with  the  Executive 
of  the  State  or  Territory  in  which  the  accused  is 

1  1  Stat.  122,  c.  11.     Rev.  Stat.  §  905. 


638 


SUPPLEMENTARY. 


JjEctuue  XIII. 
Supplementary. 
Fugitives  from 
justice. 


found.^  The  case  of  the  demanding  State  should 
be  presented  in  some  official  form ;  either  by 
official  copy  of  an  indictment,  or  by  a  complaint 
under  oath.  The  right  to  demand  surrender 
and  the  obligation  to  comply  with  the  demand 
extend  to  all  crimes  and  offences  made  punish- 
able by  the  laws  of  the  State  where  the  offence 
was  committed ;  but  if  the  Governor  of  the 
State  in  which  the  accused  is  found  refuses  to 
surrender  him,  he  cannot,  through  the  judiciary 
department,  be  compelled  to  deliver  him  up.^ 


C.     Fugitive  Slaves. 

Fugitive  slaves.  Article  IV,  section  2,  paragraph  3,  of  the 
same  section  provides  for  the  surrender  of  fugi- 
tive slaves,  and  other  persons  "  held  to  Service 
or  Labor  in  one  State,  under  the  Laws  thereof, 
escaping  into  another."  It  was  taken  from 
the  proviso  in  the  Sixth  Article  of  the  Ordi- 
nance of  1787  for  the  government  of  the  North- 
west Territory,^  passed  in  Congress  while  the 
Convention  was  sitting. 


D.     The  Territories. 

The  Territories.  Article  IV,  section  3,  paragraph  2,  respecting 
the  power  of  Congress  over  the  Territories,  was 
carefully  considered  in  a  late  case,  and  it  was 
held  that  this  power  is  general  and  plenary, 
arising  from  the  right  to  acquire  them.  This 
right  arises  from  the  power  of  the  Government 

1  Ex  parte  Reggel,  114  U.  S.  642. 

2  Kentucky  v.  Dennison,  24  How.  66. 
8  Eev.  Stat.  2d  ed.  p.  16. 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  639 


to  declare  war  and  make  treaties  of  peace,  and  lecturk  xiii 

Supplementary 
The  Territories 


in  part  from  the  power  to  make  all  needful  rules  ^^"pi' *^'"*'"^'*'">  ■ 


and  regulations  respecting  the  Territory  or  other 
property  of  the  United  States.  This  plenary 
power  extends  to  the  acts  of  the  legislatures  of 
the  Territories.^ 

In  the  case  relating  to  the  guano  islands, 
already  referred  to,^  it  was  held  that  "by  the 
law  of  nations,  when  citizens  or  subjects  of  one 
nation,  in  its  name  and  by  its  authority,  or  with 
its  assent,  take  and  hold  actual,  continuous,  and 
useful  possession  of  territory  unoccupied  by  any 
other  government  or  its  citizens,  the  nation  to 
which  they  belong  may  exercise  such  jurisdiction 
and  for  such  period  as  it  sees  fit  over  territory 
so  acquired;"  and  that  "courts  of  justice  are 
bound  to  take  judicial  notice  of  the  territorial 
extent  of  the  jurisdiction  exercised  by  the  gov- 
ernment whose  laws  they  administer,  or  of  its 
recognition  or  denial  of  the  sovereignty  of  a  for- 
eign power,  as  appearing  from  the  public  acts  of 
the  legislature  and  executive,  although  those  acts 
are  not  formally  put  in  evidence,  nor  in  accord 
with  the  pleadings;"  and,  further,  that  "the 
island  of  Navassa,  in  the  Caribbean  Sea,  must, 
by  reason  of  the  action  of  the  President,"  "  be 
considered  as  appertaining  to  the  United  States." 

E.     Guaranty  of  a  Republican  Form  of  Government. 

Article  IV,  section  4.     "  The  United  States  Republican  form 
shall  guarantee  to  every  State  in  this  Union  a  °  so^^'^°'"^° 

1  Mormon  Church  v.  United  States,  136  U.  S.  1. 

2  Jones  V.  United  States,  137  U.  S.  202. 


640  SUPPLEMENTARY. 

Lecture  XIII.     Republican  Form    of   Government."       No  such 
Supplementary.    pj-Qyisiou  was  in  tlic  Articles  of  Confederation. 

Republican  loiin     i 

of  government.  It  first  appeared  in  the  Virginia  plan,  of  which 
it  formed  the  eleventh  resolution.  A  recent 
case,  Chief  Justice  Fuller  delivering  the  opinion, 
commented  upon  this  as  follows  : 

"By  the  Constitution,  a  republican  form  of 
government  is  guaranteed  to  every  State  in  the 
Union,  and  the  distinguishing  feature  of  that 
form  is  the  right  of  the  people  to  choose  their 
own  officers  for  governmental  administration, 
and  pass  their  own  laws  in  virtue  of  the  legis- 
lative power  reposed  in  representative  bodies, 
whose  legitimate  acts  may  be  said  to  be  those  of 
the  people  themselves ;  but  while  the  people  are 
thus  the  source  of  political  power,  their  govern- 
ments, National  and  State,  have  been  limited 
by  written  constitutions,  and  they  have  them- 
selves thereby  set  bounds  to  their  own  power,  as 
against  the  sudden  impulses  of  mere  majorities. 

"  In  Luther  v.  Borden,  7  How.  1,  it  was  held 
that  the  question  which  of  the  two  opposing 
governments  of  Rhode  Island,  namely,  the 
charter  government  or  the  government  estab- 
lished by  a  voluntary  convention,  was  the  legit- 
imate one,  was  a  question  for  the  determination 
of  the  political  department,  and  when  that 
department  had  decided,  the  courts  were  bound 
to  take  notice  of  the  decision  and  follow  it ;  and 
also  that,  as  the  Supreme  Court  of  Rhode 
Island,  holding  constitutional  avithority  not  in 
dispute,  had  decided  the  point,  the  well-settled 
rule  applied  that  the  courts  of  the  United  States 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  041 

adopt   and    follow   the   decisions    of    the    State  lecture  xih. 
courts  on  questions    which  concern  merely  tlu;  ^"i'pi'""""ti^'-y- 

^  "^  lifpublic-aii  form 

constitution  and  laws  of  the  State.  Mr.  Web-  of  government, 
ster's  argument  in  that  case  took  a  wider 
sweep  and  contained  a  masterly  statement  of  the 
American  system  of  government,  as  recognizing 
that  the  people  are  the  source  of  all  political 
power,  but  that  as  the  exercise  of  governmental 
powers  immediately  by  the  people  themselves  is 
impracticable,  they  must  be  exercised  by  repre- 
sentatives of  the  people ;  that  the  basis  of  rep- 
resentation is  suif  rage  ;  that  the  right  of  suffrage 
must  be  protected  and  its  exercise  prescribed  by 
previous  law,  and  the  results  ascertained  by 
some  certain  rule  ;  that  through  its  regulated 
exercise  each  man's  power  tells  in  the  Constitu- 
tion of  the  Government  and  in  the  enactment  of 
laws  ;  that  the  people  limit  themselves  in  regard 
to  the  qualifications  of  electors  and  the  qualifica- 
tions of  the  elected,  and  to  certain  forms  for  the 
conduct  of  elections  ;  that  our  liberty  is  the  lib- 
erty secured  by  the  regular  action  of  popular 
power,  taking  place  and  ascertained  in  accord- 
ance with  legal  and  authentic  modes ;  and  that 
the  Constitution  and  laws  do  not  proceed  on  the 
ground  of  revolution  or  any  right  of  revolution, 
but  on  the  idea  of  results  achieved  by  orderly 
action  under  the  authority  of  existing  govern- 
ments, proceedings  outside  of  which  are  not 
contemplated  by  our  institutions.  Webster's 
Works,  vol.  6,  p.  217."  ' 

1  In  re  Duncan,  Petitioner,  139  U.  S.  449,  46L 


G42 


SUPPLEMENTARY. 


J.e«ti;re  XIII. 
Supplementary. 
Ameudmeuts. 


6.    Article  V.     Amendments  to  the  Constitution. 

This  article  makes  no  provision  for  the  with- 
drawal of  its  ratification  by  a  State  which  has 
ratified  the  amendment,  the  withdrawal  taking 
place  before  the  necessary  assent  of  three-fourths 
of  the  States  is  secured. 

In  the  case  of  the  Fourteenth  Amendment 
there  were  some  States  which  rejected  the 
amendment  and  subsequently  ratified  it.  Their 
votes  were  counted  in  making  the  necessary 
three-fourths.  There  were  other  States  (New 
Jersey  and  Ohio)  which  ratified  it  and  with- 
drew the  ratification  before  the  result  was  ob- 
tained. The  votes  of  all  were  counted  in  making 
up  the  necessary  two-thirds  required  by  the 
Constitution. 

In  the  case  of  the  Fifteenth  Amendment,  one 
State  attempted  to  withdraw  its  assent ;  but  it 
was  immaterial  whether  it  was  counted  or  not,  as 
there  were  sufficient  ratifying  States  without  it. 

The  subject  is  considered  further  in  connection 
with  those  amendments. 


Article  VI.     Debts  of  the  United  States, 
premacy  of  the  Constitution. 


Su- 


A.     Revoliitlonar)/  Debt  of  the  United  States. 

Revolutionary  Paragraph  1  provides  for  the  assumption  by 

state's  '^  "'  ^^  ^'^^^  ^^^^  Government  of  the  existing  debt  of  the 
old  Government.  This  was  done  by  an  early 
act  of  Congress,  in  which,  after  reciting  that 
"justice  and  the  support  of  public  credit  require 
that  provision  should  be  made  for  fulfilling  the 


1 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  643 

engagements  of  the  United  States  in  respect  to  lectuue  xiii. 
their  forein^n  debt,  and  for  funding:  their  domes-  ^"PP)'-"'"L'"''^'"y- 

*-■  _  _    "  Kevoliitioiiary 

tic  debt  upon  equitable  and  satisfactory  terms,"  debt  of  the  United 

legislative   provisions   were   enacted   which   re-  ^^^®^" 

stored  confidence  and  credit,  and  inspired  faith 

in  the  new  Government.     In  a  later  section  in 

the  act,  after  reciting  that  "  whereas  a  provision 

for  the  debts  of   the  respective   States  by  the 

United  States,  would  be  greatly  conducive  to  an 

orderly,  economical,  and  effectual  arrangement 

of  the  public  finances,"  a  loan  of   $21,500,000 

was  proposed  to  the  different   States,  to  assist 

them  in  restoring  their  credit.^ 

B.     The  Constitution  the  Supreme  Law. 

Article  VI,  paragraph  2.  "This  Constitu- Supremacy  of  the 
tion,  and  the  Laws  of  the  United  States,  which  Constitution. 
shall  be  made  in  Pursuance  thereof ;  and  all 
Treaties  made,  or  which  shall  be  made,  under 
the  authority  of  the  United  States,  shall  be  the 
supreme  Law  of  the  Land."  It  is  elementary 
that  a  State  statute,  in  conflict  with  a  law  of 
Congress  upon  a  subject  about  which  Congress 
may  constitutionally  legislate,  is  void.  So,  too, 
a  State  statute  is  void  if  it  relates  to  a  subject 
which  is  vested  exclusively  in  Congress  by  the 


1  Act  of  August  4,  1790,  1  Stat.  138,  c.  34.  See  also  Act  of  Au- 
gust 10,  1790,  1  Stat.  180,  c.  39  ;  Act  of  August  12,  1790,  1  Stat.  186, 
c.  47  ;  Act  of  December  27,  1790,  1  Stat.  188,  c.  1 ;  Act  of  May  8, 
1792,  1  Stat.  281,  c.  38;  Act  of  March  2,  1793,  1  Stat.  338,  c.  26; 
Act  of  May  30,  1794,  1  Stat.  370,  c.  36;  Act  of  January  28,  1795, 
1  Stat.  410,  c.  13 ;  Act  of  February  19,  1796,  1  Stat.  448,  c.  2  ;  Act 
of  March  3,  1797,  1  Stat.  516,  c.  25. 


Gi4 


SUPPLEMENTARY. 


Lecture  XIII.     Constitution.''     A    treaty,  although    its    obliga- 
Suppieinciitary.    ^j^j^g  [j^  resraid  to  the  other  party  to  it  remain 

Supremacy  of  the  ^  *=>  i.         j 

Constitution.  in  force,  is,  as  a  part  of  the  supreme  law  of  the 
land,  subject  to  be  revoked  or  modified  as  to  its 
municipal  operation,  by  act  of  Congress,  like  any 
other  law.^ 


The  first  ten 
amendments. 


8.    The  First  Ten  Amendments. 

The  first  Congress  proposed  at  its  first  session, 
in  the  manner  prescribed  by  Article  V  of  the 
Constitution,  twelve  amendments  for  the  consid- 
eration of  the  several  States.  Ten  of  these  were 
ratified  by  the  States  as  shown  in  the  margin.^ 
The  two  which  were  never  ratified  are  also 
printed    in  the  margin.*     The   ratified    articles 


^  Head  Money  Cases,  112  U.  S.  580 ;  Wabash,  St.  Louis  &  Pa- 
cific Railway  Co.  v.  Illinois,  118  U.  S.  557. 

2  Head  Money  Cases,  112  U.  S.  580. 

3  By  New  Jersey,  20th  November,  1789 ;  by  Maryland,  19th 
December,  1789;  by  North  Carolina,  22d  December,  1789;  by 
South  Carolina,  19th  January,  1790 ;  by  New  Hampshire,  25th 
January,  1790  ;  by  Delaware,  28th  January,  1790  ;  by  Pennsylva- 
nia, 10th  March,  1790 ;  by  New  York,  27th  March,  1790  ;  by  Rhode 
Island,  15th  June,  1790  ;  by  Vermont,  ^d  November,  1791  ;  by  Vir- 
ginia, 15th  December,  1791. 

*  Article  the  First.  After  the  first  enumeration  required  by  the 
First  Article  of  the  Constitution,  there  shall  be  one  Representative 
for  every  thirty  thousand,  until  the  number  shall  amount  to  one 
hundred,  after  which,  the  proportion  shall  be  so  regulated  by  Con- 
gress, that  there  shall  not  be  less  than  one  hundred  Representatives, 
nor  less  than  one  Representative  for  every  forty  thousand  persons, 
until  the  number  of  Representatives  shall  amount  to  two  hundred; 
after  which  the  proportion  shall  be  so  regulated  by  Congress,  that 
there  shall  not  be  less  than  two  hundred  Representatives,  nor  more 
than  one  Representative  for  every  fifty  thousand  persons. 

Article  Second.  No  law,  varying  the  compensation  for  the  ser- 
vices of  the  Senators  and  Representatives,  shall  take  effect,  until  an 
election  of  Representatives  shall  have  intervened. 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  645 

are   known   as   the   first   ten  amendments,  and  le( tluk  xiii. 
have  been  repeatedly  held  to  he  restraints  upon  !j.,'^-J',."'''''''"'^* 
the  power  of  Congress,  and  not  restraints  upon  iimeudiLeiits. 
the  power  of  the  States. 

A.    Amendment  I. 

This  amendment  provides  that "  Congress  shall  First  Amendment, 
make  no  law  respecting  an  establishment  of  re- 
ligion or  prohibiting  the  free  exercise  thereof," 
etc.  In  deciding  the  Mormon  Cases,  the  Supreme 
Court  held  that  the  pretence  of  a  religious  belief 
in  polygamy  could  not  deprive  Congress  of  the 
power  to  prohibit  it,  as  well  as  all  other  open 
offences,  against  the  enlightened  sentiment  of 
mankind.^ 

B.     Amendment  II. 

"  A  well  regulated  Militia,  being  necessary  to  second  Amend- 
the  security  of  a  free  State,  the  right  of  the  ™^"** 
people  to  bear  Arms  shall  not  be  infringed." 
This  provision  is  a  limitation  only  on  the  powder 
of  Congress,  and  not  upon  the  power  of  the 
States ;  and,  unless  restrained  by  their  own  con- 
stitutions. State  legislatures  may  enact  statutes 
to  control  and  regulate  all  organizations,  drilling 
and  parading  of  military  bodies  and  associa- 
tions, except  those  which  are  authorized  by  the 
militia  laws  of  the  United  States.^ 


1  Hfornion  Church  v.  United  States,  136  U.  S.  1.  See  also 
Reynolds  v.  United  States,  98  U.  S.  145 ;  Murphy  v.  Bamsey,  114 
U.  S.  15. 

2  Presser  v.  Illinois,  110  U.  S.  252. 


646 


SUPPLEMENTARY. 


Lecture  XIII. 
Supplemeutary. 
Third  Amend- 
ment. 


Fourth  Amend- 
ment. 


Fifth  Amend- 
ment. 


C.     Amendment  HI. 

"  No  Soldier  shall,  in  time  of  peace,  be  quar- 
tered in  any  house,  without  the  consent  of  the 
owner,  nor  in  time  of  war,  but  in  a  manner  to 
be  prescribed  by  law."  This  amendment  seems 
to  have  been  thought  necessar}^  It  does  not 
appear  to  have  been  the  subject  of  judicial 
exposition ;  and  it  is  so  thoroughly  in  accord 
with  all  our  ideas,  that  further  comment  is 
unnecessary. 

D.     Amendments  IV  and  V. 

"  The  right  of  the  people  to  be  secure  in  their 
persons,  houses,  papers,  and  effects,  against  un- 
reasonable searches  and  seizures,  shall  not  be 
violated,  and  no  warrants  shall  issue,  but  upon 
probable  cause,  supported  by  oath  or  affirma- 
tion, and  particularly  describing  the  place  to  be 
searched,  and  the  persons  or  things  to  be 
seized." 

"  No  person  shall  be  held  to  answer  for  a 
capital,  or  otherwise  infamous  crime,  unless  on 
a  presentment  or  indictment  of  a  Grand  Jury, 
except  in  cases  arising  in  the  land  or  naval 
forces,  or  in  the  militia,  when  in  actual  service 
in  time  of  war  or  public  danger ;  nor  shall  any 
person  be  subject  for  the  same  offence  to  be 
twice  put  in  jeopardy  of  life  or  limb ;  nor  shall 
be  compelled  in  any  criminal  case  to  be  a  wit- 
ness against  himself,  nor  be  deprived  of  life, 
liberty,  or  property,  without  due  process  of  law ; 
nor  shall  private  property  be  taken  for  public 
use,  without  just  compensation." 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  647 

These    two     aniendments     were    considered  lectukk  xiii. 
together   by   the    Supreme    Court    in    a    recent  ^Tl'''"""'"'!''^- 
case,^  in  which  a  section  of  an  act  to  amend  the  meut. 
customs  revenue  laws,^  which  authorized  a  court 
of  the  United  States,  in  revenue  cases,  on  motion 
of  the  attorney  for  the  Government,  to  require 
the  defendant  to  produce  in  court  his  private 
books,  invoices,  and  papers,  or  else  the   allega- 
tions of  the  Government  be  taken  as  confessed, 
was  brought  before  it  for  construction. 

The  court  gave  the  case  a  careful  considera- 
tion, and,  in  deciding  it,  delivered  an  oj)inion 
which  may  be  read  with  profit.  The  substance 
of  the  decision  was,  that  these  provisions  were 
repugnant  both  to  the  Fourth  and  Fifth  Amend- 
ments to  the  Constitution. 

As  to  the  Fourth  Amendment,  it  was  held 
that  no  actual  entry  upon  premises,  and  physi- 
cal search  for  and  seizure  of  papers,  was  neces- 
sary in  order  to  constitute  an  unreasonable 
search  and  seizure  within  the  meaning  of  that 
amendment ;  that  a  compulsory  production  of 
them,  to  be  used  against  their  owner  in  a  crimi- 
nal or  penal  proceeding,  or  for  a  forfeiture,  was 
within  the  spirit  and  meaning  of  that  amend- 
ment; and  that  it  was  equivalent  to  a  compul- 
sory production  of  papers,  to  make  their  non- 
production  a  confession  of  the  allegations  which 
it  was  pretended  they  would  prove. 

As  to  the  Fifth  Amendment,  it  was  held  that 


1  Boyd  V.  The  United  States,  116  U.  S.  616. 

2  Act  of  June  22,  1874,  c.  391,  18  Stat.  186. 


648 


SUPPLEMENTARY. 


]>KCTURE    XIII. 

Supplementary. 
Fifth  Amend- 
ment. 


a  proceeding  to  forfeit  a  person's  goods  for  an 
offence  against  the  law,  though  civil  in  form, 
and  whether  in  rem  or  m  j^e^^sonam  was  in  fact 
a  criminal  case  within  the  meaning  of  the  pro- 
vision in  that  amendment,  that ''  no  person  shall 
be  compelled,  in  any  criminal  case,  to  be  a  wit- 
ness against  himself ; "  and  that  the  seizure  or 
compulsory  production  of  a  man's  private  papers, 
to  be  used  in  evidence  against  him,  was  equiva- 
lent to  compelling  him  to  be  a  witness  against 
himself,  and,  in  a  prosecution  for  a  crime,  pen- 
alty, or  forfeiture,  was  within  the  prohibition  of 
that  amendment. 

As  to  both  amendments,  it  was  held  that  they 
related  to  the  personal  security  of  the  citizen  ; 
that  they  nearly  run  into  and  mutually  throw 
light  upon  each  other ;  that  when  the  thing  for- 
bidden in  the  Fifth  Amendment  —  the  compel- 
ling a  man  to  be  a  witness  against  himself  —  is 
the  object  of  a  search  and  seizure  of  his  private 
papers,  it  is  an  "  unreasonable  search  and 
seizure,"  within  the  meaning  of  the  Fourth 
Amendment ;  and  that,  as  a  rule,  "  constitu- 
tional provisions  for  the  security  of  person  and 
property  should  be  liberally  construed." 


E.     Amendments    VI  and  VII. 

Sixth  and  Seventh      The  Sixtli  Amendment  relates  to  jury  trials 

Amendments.       -^  criminal  cascs,  and  the  Seventh  Amendment 

to  jury  trials  in  suits  at  the  common  law,  where 

the  value  in   controversy   shall  exceed  twenty 

dollars.     Both  have  been  fully  considered. 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  G49 

F.     Amendment    VIII. 

"  Excessive    bail    sliall    not  be   required,   nor  lecture  xiii. 
excessive   fines  imposed,  nor  cruel  and  unusual  J"PP''''n'="*ary. 
punisliments  inflicted."     These  provisions  apply  ment. 
to  National  and  not  to  State  legislation.^ 

In  Kemmlers  Case,^  where  an  attempt  was 
made  to  convince  the  court  that  execution  by 
the  application  of  an  electric  current  was  a 
"  cruel  and  unusual  punishment  within  the  in- 
tent of  the  Eighth  Amendment,"  the  court  said  : 
"  The  provision  in  reference  to  cruel  and  un- 
usual punishments  was  taken  from  the  well- 
known  Act  of  Parliament  of  1688,  entitled 
'An  act  declaring  the  rights  and  liberties  of 
the  subject,  and  settling  the  succession  of  the 
crown ; '  in  which,  after  rehearsing  various 
grounds  of  grievance,  and,  among  others,  that 
excessive  bail  hath  been  required  of  persons 
committed  in  criminal  cases,  to  elude  the 
benefits  of  the  laws  made  for  the  liberty  of 
the  subject ;  and  excessive  fines  have  been  im- 
posed ;  and  illegal  and  cruel  punishments 
inflicted.  This  Declaration  of  Risrhts  had 
reference  to  the  acts  of  the  executive  and 
judicial  departments  of  the  government  of  Eng- 
land ;  but  the  language  in  question,  as  used  in 
the  constitution  of  the  State  of  New  York,  was 
intended  particularly  to  operate  upon  the  legis- 
lature of  the  State,  to  whose  control  the  punish- 
ment of  crime  was  almost  entirely  confided. 
So  that,   if   the    punishment  prescribed  for  an 

1  Pervear  v.  Cominon wealth,  5  Wall.  475.         2  136  u.  S.  436. 


650 


SUPPLEMENTARY. 


Lecture  XIII. 
Supplementary. 
Eighth  Ameud- 
meut. 


Ninth  Amend- 
ment. 


offence  against  the  laws  of  the  State  were  mani- 
festly cruel  and  unreasonable,  as  burning  at 
the  stake,  crucifixion,  breaking  on  the  wheel,  or 
the  like,  it  would  be  the  duty  of  the  courts  to 
adjudge  such  penalties  to  be  within  the  constitu- 
tional prohibition.  And  we  think  this  equally 
true  of  the  Eighth  Amendment,  in  its  applica- 
tion to  Congress." 

G.     Amendment  IX. 

"  The  enumeration  in  the  Constitution,  of 
certain  rights,  shall  not  be  construed  to  deny  or 
disparage  others  retained  by  the  people."  This 
principle  of  construction  is  manifestly  just,  and 
would  doubtless  have  obtained,  even  if  it  had 
not  been  inserted  in  the  Constitution. 


Tenth  Amend- 
ment. 


H.     Amendment  X. 

"The  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it 
to  the  States,  are  reserved  to  the  States  respec- 
tively or  to  the  people."  The  old  Articles  of 
Confederation  presented  this  princi^Dle  of  con- 
struction in  a  much  broader  shape.  Article  II 
provided  that  "  Each  State  retains  its  sov- 
ereignty, freedom,  and  independence,  and  every 
power,  jurisdiction,  and  right  which  is  not,  by 
this  confederation,  expressly  delegated  to  the 
United  States  in  Congress  assembled."  As 
originally  adopted  the  Constitution  contained 
no  equivalent  for  this  canon  of  construction. 
The  Tenth  Amendment  was  intended  to  serve 
as   a   compromise    between    the    two   extreme 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  G51 

views.  It  will  be  observed  that  the  controlling  lectuuk  xiii. 
word,  "  expressly,"  found  in  the  Articles  of  Con-  xe[|[I' Aiiierrd^ 
federation,  is  omitted  in  the  amendment.  Al-  ment. 
though  the  advocates  of  State's  rights  did  not 
fail  to  contend  that  the  two  were  substantial 
equivalents,  notwithstanding  the  omission,  their 
views  were  never  adopted  by  the  judicial  de- 
partment, and  it  may  now  be  said  to  be  well 
settled  that  Congress,  under  the  operation  of 
the  eighteenth  paragraph  of  section  8,  Article  I, 
which  authorizes  it  "to  make  all  laws  which 
shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,"  has  by  impli- 
cation every  power  necessary  and  proper  for 
fully  carrying  into  execution  the  powers  ex- 
pressly conferred.^  One  of  the  latest  expres- 
sions of  the  court  on  this  point  is  as  follows : 
"  A  constitution,  establishing  a  frame  of  govern- 
ment, declaring  fundamental  principles,  and 
creating  a  national  sovereignty,  and  intended  to 
endure  for  ages,  and  to  be  adapted  to  the 
various  crises  of  human  affairs,  is  not  to  be 
interpreted  with  the  strictness  of  a  private 
contract.  The  Constitution  of  the  United 
States,  by  apt  words  of  designation  or  general 
description,  marks  the  outlines  of  the  powers 
granted  to  the  national  legislature ;  but  it  does 
not  undertake,  with  the  precision  and  detail  of 
a  code  of  laws,  to  enumerate  the  subdivisions  of 
those  powers,  or  to  specify  all  the  means  by 
which   they   may   be    carried    into    execution." 

1  McCuUoch  V.  Maryland,  4  Wheat.  316. 


652  SUPPLEMENTARY. 

i.KcTiTRK  XIII.     Commenting  upon  tlie  eighteentli  paragraph  of 
Supplementary,    gg^tion  8,  lust  cited,  tliG  court  Continued  :  "  By 

I  onth  Ameud-  . 

mciii.  the  settled  construction  and  the  only  reasonable 

interpretation  of  this  clause,  the  words  '  neces- 
sary and  proper'  are  not  limited  to  such 
measures  as  are  absolutely  and  indispensably- 
necessary,  without  which  the  powers  granted 
must  fail  of  execution ;  but  they  include  all 
appropriate  means  which  are  conducive  or 
adapted  to  the  end  to  be  accomplished,  and 
which,  in  the  judgment  of  Congress,  will  most 
advantageously  effect  it."  And,  referring  to 
McCiiUoch  V.  Marylcmd,  the  court  said:  "The 
rule  of  interpretation  thus  laid  down  has  been 
constantly  adhered   to   and    acted   on   by   this 

COlH't."  ^ 

9.    The  Eleventh  Amendment. 

Eleventh  Amend-      This  amendment,  which  relates  to  suits  against 
™^°''  States,  has  been  already  fully  considered  both 

in  the  lectures,  and  in  the  notes  upon  them. 
Chishohn  v.  Georgia,^  was  the  direct  and  impell- 
ing cause  for  it.  The  States  came  out  from  the 
war  of  the  revolution  burdened  with  debt. 
Although  Congress  had  made  provision  for  tak- 
ing care  of  a  part  of  that  debt,  a  large  amount 
was  still  outstanding.  When  they  learned  that 
a  State  could  be  sued  in  the  Federal  courts,  they 
hurried  to  make  that  an  impossibility  thereafter, 
Massachusetts  taking  the  lead.  The  Eleventh 
Amendment,    which    effected    that   result,    was 

1  Legal  Tender  Case,  110  U.  S.  421,  439,  440,  441. 

2  2  Dall.  419. 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  653 

proposed  by  Congress  March  5,  1794,  and  was  lecture  xiil 
proclaimed   January    8,    1798.       It    is    a    little  ;;;';'j;;;;;;;;^^7^,. 
remarkable    that   the    decision    which    made    it  ment. 
necessary  should  have  been  practically  overruled 
nearly  a  hundred  years  after  it  was  niade.^ 

10.    The  Iwclfth  Amendment. 

This  amendment  grew  out  of  the  trouble  in  Twelfth  Amend- 
the  election  of  Mr.  Jefferson  as  President.     It  "^^"*" 
was  proposed  by  Congress  to  the  legislatures  of 
the  several  States  December  12,  1803,  and  was 
proclaimed  as  adopted  September  25,  1804. 

11.    The    Thirteenth,  Fourteenth,  and   Fifteenth 
Amendments. 

All  these  amendments  were  the  outcome  of  Thirteenth,  Four- 
the  war  and  of  the  Reconstruction  which  fol-  pTf  teen  th"  a  mend- 
lowed  it.     The  Thirteenth  was  proposed  to  the  ments. 
States    by   Congress  by   joint  resolution    dated 
February  1,  1865,  before  the  close  of  the  war, 
and  was  promulgated  by  the  Secretary  of  State 
pursuant  to  law,  as  a  part  of  the  Constitution, 
December  18,  1865,  having  received  the  assent 
of  the  legislatures  of  twenty-seven  States,  being 
three-fourths  of  the  States,  thirty-six  in  all.^ 

The  Fourteenth  Amendment  was  submitted 
by  Congress  to  the  States  June  16,  1866,^  after 
the  majority  in  that  body  and  President  John- 
son had  separated  on  the  question  of  reconstruc- 
tion.    Mr.  Seward,  the  Secretary  of  State,  issued 

1  Hans  V.  Louisiana,  134  U.  S.  1.  2  gge  13  Stat.  774,  775. 

8  14  Stat.  358  ;  Joint  Resolution  No.  48. 


654  SUrPLEMENTARY. 

Lecture  XIII.     two    promulgations  of   tliis    amendment.     The 
supplementary.    ^^^^  ^^.^^  ^|.^^g^  j^jl    20,  1868.1     j^  recited  that 

I  he  Fourteenth  ^  ' 

Amendment  how  no  law  "  cxpressly  or  by  conclusive  implication, 
"^^^^  ^  ■  authorizes  the  Secretary  of  State  to  determine 

and  decide  doubtful  questions  as  to  the  authen- 
ticity of  the  organization  of  State  legislatures, 
or  as  to  the  power  of  any  State  legislature  to 
recall  a  previous  act  or  resolution  of  ratification 
of  any  amendment  proposed  to  the  Constitution." 
It  then  further  recited  that  the  assent  of  Arkan- 
sas, Florida,  North  Carolina,  Louisiana,  South 
Carolina,  and  Alabama  had  been  given  "  by  newly 
constituted  and  newly  established  bodies,  avow- 
ing themselves  to  l^e  and  acting  as  the  legisla- 
tures respectively"  of  those  States;  and  that 
the  assent  of  Ohio  and  New  Jersey,  once  given, 
had  been  withdrawn  by  subsequent  resolutions 
of  their  legislatures,  and  that  it  was  "  deemed  a 
matter  of  doubt  and  uncertainty  whether  such 
resolutions  are  not  irregular,  invalid,  and  there- 
fore inelfectual  for  withdrawing  the  consent  of 
the  said  two  St-ates."  The  document  closed  by 
saying  that  ''  if  the  resolutions  of  the  legislatures 
of  Ohio  and  New  Jersey,  ratifying  the  aforesaid 
amendment,  are  to  be  deemed  as  remaining  of 
full  force  and  effect,  .  .  .  then  the  aforesaid 
amendment  has  been  ratified." 

This  document,  issued  on  the  20th  of  June, 
1868,  was  not  accompanied  by  the  order  of  pub- 
lication required  by  the  Act  of  April  20,  1818.^ 


1  15  Stat.  706;  Proclamation  No.  11. 

2  3  Stat.  439,  c.  80,  §  2. 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  655 

On  the  next  day,  July  21,  1868,  Congress,  by  LKfTtiiK  xnt. 
a  ioint  resolution,  resolved :  '  "  Whereas  the  leer-  «"ppif' n.'ntary. 
islatures  of  the  States  of  ...  New  Jersey  .  .   .  Ain.Tidment  how 
Ohio  .  .  .  Arkansas,  Florida,    North    Carolina, 
Alabama,  South  Carolina,  and  Louisiana  [nam- 
ing twenty-nine   States,  including  the  Southern 
States  su23posed  doubtful,  and  the  Northern  States 
which  attempted  to  withdraw  their  ratifications] 
have  ratified  the  Fourteenth  Article  of  Amend- 
ment, .  .  .  therefore     Resolved  .  .  .  that     said 
Fourteenth  Article  is  hereby   declared    to  be  a 
part  of  the  Constitution  of  the  United  States, 
and  it  shall  be  duly  promulgated  as  such  by  the 
Secretary  of  State." 

This  seemed  to  solve  Mr.  Seward's  doubts. 
On  the  28th  of  July,  1868,  he  issued  a  second 
proclamation,^  ordering  the  amendment  published 
in  the  newspapers,  and  certifying  that  it  had 
"  been  adopted"  and  that  it  had  "  become  valid 
to  all  intents  and  purposes  as  a  part  of  the  Con- 
stitution of  the  United  States."  Since  then 
many  cases  have  been  before  the  Supreme  Court, 
involving  the  construction  of  this  article ;  but  in 
no  one  has  any  question  been  raised  as  to  its  rati- 
fication and  incorporation  into  the  Constitution. 

In  the  case  of  the  Fifteenth  Amendment,  the 
legislature  of  New  York  in  1870  attempted  to 
withdraw  the  ratification  given  by  its  predecessor 
in  1869.  The  Secretary  of  State,  Mr.  Fish, 
in  proclaiming  the  adoption  of  the  amendment, 
said :  "  It  appears  from  an  offi^cial  document  on 

1  15  Stat.  709.  2  15  Stat.  708. 


ratirtt'd. 


Ameiulment  re 
lates  to  slavery. 


656  SUPPLEMENTARY. 

lectukk  XIII.     file    that    the   legislature  of   the  State  of   New 
sui)i.ienuMtaiy.     York  has    since  passed  resolutions   clainiint?  to 

I  he  Fourteenth  ...  .  . 

Amendment  how  withdraw  the  Said  ratification."  ^  In  this  case  it 
would  have  made  no  difference  in  the  result  if 
the  withdrawal  had  been  treated  as  valid. 

A.      The  TJiirteenth  Amendment. 

Thirteenth  Tliis  amendment  relates  entirely  to  slavery  and 

involuntary  servitude  (which  it  abolishes)  ;  and, 
although  by  its  reflex  action,  it  establishes 
universal  freedom  in  the  United  States,  and 
Congress  may  probably  pass  laws  directly  en- 
forcing its  provisions,  yet  such  legislative 
power  extends  only  to  the  subject  of  slavery  and 
its  incidents ;  and  the  denial  of  equal  accommo- 
dations in  inns,  public  conveyances,  and  places 
of  public  amusement  (which  is  forbidden  by  the 
sections  in  question),  imposes  no  badge  of  slav- 
ery or  involuntary  servitude  upon  the  party,  but 
at  most,  infringes  rights  which  are  protected 
from  State  aggression  by  the  Fourteenth 
Amendment.^ 

Mr.  Justice  Miller,  in  his  opinion  in  the 
Slaughter  House  Cases,  from  which  he  quotes  at 
length  in  Lecture  VIII,  makes  this  clear.  In  the 
headnote  to  that  case,  in  the  structure  of  which 
his  hand  is  apparent,  it  is  said  of  the  three 
amendments  which  followed  the  war,  that  the 
main  purpose  of  all  was  the  freedom  of  the 
African  race,  the  security  and  perpetuation  of 
that   freedom,    and    their   protection   from   the 

1  16  Stat.  1131.  '-2  Civil  Rights  Cases,  109  U.  S.  3. 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  657 

oppressions  of  the  white  men  who  had  formerly  lkcturk  xiii. 

111,1  •         1  Suppleiiientary. 

held  them  m  slavery.  ^  Thirteenth 

While  the  Thirteenth  Article  of  Amendment  Amendment  re- 
was  intended  primarily  to  aholish  African  slav- 
ery, it  equally  forbids  Mexican  peonage  or  the 
Chinese  coolie  trade,  when  they  amount  to 
slavery  or  involuntary  servitude ;  and  the  use 
of  the  word  "  servitude  "  is  intended  to  prohibit 
all  forms  of  involuntary  slavery  of  whatever 
class  or  name.^ 

So,  too,  its  effect  is  limited  to  matters  subse-  is  limited  to  mat- 
quent  to  its  adoption.  A  contract  for  the  sale  j;'-!^^';|;j;^^^^^^^^ 
of  a  slave  made  before  the  Avar,  was  enforced  in 
the  courts  after  the  adoption  of  this  amend- 
ment ;  ^  and  in  another,  and  very  recent  case, 
a  surviving  partner,  in  possession  of  slaves  and 
using  them  on  the  partnership  plantation  during 
the  war,  was  held  accountable  for  the  value  of 
their  services.^ 

The  first  and  second  sections  of  the  Civil 
Rights  Act  of  March  1,  1875,  are  unconstitu- 
tional enactments  as  applied  to  the  several 
States,  not  being  authorized  either  by  the  Thir- 
teenth or  Fourteenth  Amendments.* 

B.    The  Fourteenth  Amendment. 

This    amendment    is  a  much   larger  matter.  The  Fourteenth 
(1)  It  relates  to  citizenship:  and  (2)  to  the  priv-  Amendment. 
ileges  and   immunities  of  citizens.     (3)   It  im- 

1  Slaughter  House  Cases,  16  Wall.  36. 

2  Osborn  v.  Nicholson,  13  Wall.  654. 
8  Clay  V.  Field,  138  U.  S.  464. 

*  Civil  Eights  Cases,  109  U.  S.  3. 


658  SUPPLEMENTARY. 

Lecture  XIII.  poses  limitations  upon  State  power.  (4)  It  deals 
Swe<^!ui  ^^^^^^  ^^^^  apportionment  of  representation.  (5) 
Aniendiueiit.        It  exclucles  Certain  classes  of  persons  from  the 

General  consider-  .  j.  ,•  ti*i  ••!  i/r»\ 

^tiojjs  exercise  oi  certain  political  privileges:  and  (0) 

it  forbids  the  invalidating  of  the  public  deljt  of 
the  United  States,  or  the  assumption  of  any  debt 
incurred  in  aid  of  the  rebellion  or  any  claim  for 
the  loss  or  emancipation  of  slaves.  I  shall 
attempt  to  classify  the  leading  cases  under  these 
heads.  Before  doing  this  some  general  propo- 
sitions, decided  by  the  Supreme  Court,  should  be 
stated,  which  are  applicable  to  all. 

That  amendment  was  ordained  to  secure  equal 
rights  to  all  persons.  To  render  its  purpose 
effectual,  Congress  is  vested  with  power  to  en- 
force its  provisions  by  appropriate  legislation. 
Such  legislation  must  act,  not  upon  the  abstract 
thing  denominated  a  State,  but  upon  the  persons 
who  are  its  agents  in  the  denial  of  the  rights 
which  were  intended  to  be  secured.  Such  is 
the  Act  of  March  1,  1875,  and  it  is  fully  author- 
ized by  the  Constitution.^ 

On  the  other  hand,  it  was  not  designed  to 
interfere  with  the  power  of  a  State  to  protect 
the  lives,  liberty,  and  property  of  its  citizens, 
nor  with  the  exercise  of  that  power  in  the 
adjudications  of  the  courts  of  the  State  in 
administering  the  process  provided  by  its  laws. 
Therefore,  when  a  person  accused  of  crime 
within  a  State  is  subjected,  like  all  other  per- 
sons in  the  State,  to  the  law  in  its  regular  course 

1  Ex  parte  Virginia,  100  U.  S.  339. 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  659 

of  administration  in  courts  of  justice,  the  judg-  lecture  xiii. 
ment  so  arrived  at  cannot  be  held  to  be  an  unre-  J"i'i'''''"*'"''"'y- 

(jeiier:il  consider- 

strained   and  arbitrary  exercise    of  power,  and  inions. 
therefore  void.^ 

Nor  can  a  State  be  deemed  guilty  of  violating 
its  obligations  under  the  Constitution  because 
its  highest  court,  while  acting  within  its  juris- 
diction, decides  erroneously.^ 

In  the  Civil  Rights  Cases^  it  is  held  that  this 
amendment  is  prohiljitory  upon  the  States  only, 
and  that  the  legislation  authorized  to  be 
adopted  by  Congress  for  enforcing  it  is  not 
direct  legislation  on  the  matters  respecting 
which  the  States  are  prohibited  from  making  or 
enforcing  certain  laws,  or  doing  certain  acts, 
but  is  corrective  legislation,  such  as  may  be 
necessary  or  proper  for  counteracting  and  re- 
dressing the  effects  of  such  laws  or  acts. 

Nor  does  this  amendment  impair  in  any  way 
the  police  power  of  the  States,  nor  limit  the 
subjects  in  relation  to  which  it  may  be  exercised 
for  the  protection  of  its  citizens.'* 

A  municipal  ordinance  prohibiting  from  wash- 
ing and  ironing  in  public  laundries  and  wash- 
houses,  within  defined  territorial  limits,  from  ten 
o'clock  at  night  to  six  in  the  morning,  is  a  purely 
police  regulation,  within  the  competency  of  a 
municipality  possessed  of  the  ordinary  powers.* 

1  In  re  Converse,  137  U.  S.  624.  «  lb. 

»  Civil  Rights  Cases,  109  U.  S.  3. 

*  Barhier  v.  Connullij,  113  U.  S.  27;  Soon  Hing  v.  Crowley, 
113U.  S.  703. 

^  Barhier  v.  Connolly ,  113  U.  S.  27;  see  also  Powell  v.  Penn- 
sylvania, 127  U.  S.  G78. 


660 


SUPPLEMENTARY. 


Lkcture  XIII. 
Supplementary. 
General  consider- 
ations. 


The  guarantees  of  protection  extend  to  all 
persons  within  the  territorial  jurisdiction  of  the 
United  States,  without  regard  to  differences  of 
race,  color,  or  nationality  ;^  and  to  corporations.^ 

It  was  not  intended  by  it  to  compel  the  States 
to  adopt  an  iron  rule  of  equal  taxation.^ 


Rights  of  citizen- 
ship. 


1.    Citizenship. 

The  Fourteenth  Amendment  did  not  radi- 
cally change  the  whole  theory  of  the  relations 
of  the  State  and  Federal  Governments  to  each 
other,  and  of  both  governments  to  the  people. 
The  same  person  may  be  at  the  same  time  a 
citizen  of  the  United  States  and  a  citizen  of  the 
State.^ 

The  right  to  practice  law  in  the  State  courts 
is  not  a  privilege  or  immunity  of  a  citizen  of  the 
United  States,  within  the  meaning  of  the  first 
section  of  the  Fourteenth  Article  of  Amendment 
of  the  Constitution  of  the  United  States.  The 
power  of  a  State  to  prescribe  the  qualifications 
for  admission  to  the  bar  of  its  own  courts  is 
unaffected  by  that  amendment,  and  the  courts 
cannot  inquire  into  the  reasonableness  or  pro- 
priety of  the  rules  it  may  prescribe.^ 

The  right  of  suffrage  was  not  necessarily  one 
of  the  privileges  or  immunities  of  citizenship 
before  the  adoption  of  the  Fourteenth  Amend- 


1  Yick  Wo.  V.  Hopkins,  118  U.  S.  356. 

2  Santa  Clara  County  v.  SotUhern  Pacific  Railroad,  118  U.  S.  394. 
'  Bell  Gap  Bailroad  Co.  v.  Pfnmsylvania,  134  U.  S.  232. 

*  In  re  Kemmler,  136  U.  S.  436,  448. 

*  Bradwell  v.  The  State,  16  Wall.  130. 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  G61 

ment,  and    tliat   amendment    does   not   add  to  lecture  xin. 
these  privilet^es  and  inimiuiities.     It  simply  fur-  ;;"Pif' "«"'=*;y- 

i  o  1    »/  Kij^hts  of  citizen- 

nislies  additional  guaranty  for  the  protection  of  ship, 
such  as  the  citizen  already  had.  At  the  time  of 
the  adoption  of  that  amendment,  suffrage  was 
not  coextensive  with  the  citizenship  of  the 
States ;  nor  was  it  at  the  time  of  the  adoption 
of  the  Constitution.  Neither  the  Constitution 
nor  the  Fourteenth  Amendment  made  all  citi- 
zens voters.  A  provision  in  a  State  Constitu- 
tion which  confines  the  right  of  voting  to  male 
citizens  of  the  United  States,  "  is  no  violation  of 
the  Federal  Constitution.  In  such  a  State 
women  have  no  riaht  to  vote."  ^ 

o 

The  Fourteenth  Amendment  prohibits  a  State 
from  depriving  any  person  of  life,  liberty,  or 
property,  without  due  process  of  law,  and  from 
denying  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws ;  but  it  adds  noth- 
ing; to  the  risfhts  of  one  citizen  as  ao:ainst 
another.  It  simply  furnishes  an  additional 
guaranty  against'  any  encroachment  by  the 
States  upon  the  fundamental  rights  which  be- 
long to  every  citizen  as  a  member  of  society. 
The  duty  of  protecting  all  its  citizens  in  the 
enjoyment  of  an  equality  of  rights  was  origi- 
nally assumed  by  the  States,  and  it  still  remains 
there.  The  only  obligation  resting  upon  the 
United  States  is  to  see  that  the  States  do  not 
deny  the  right.  This  the  amendment  guaran- 
tees, but  no  more.     The  power  of  the  National 

1  Minor  v.  Happersett,  21  Wall.  162. 


662  SUPPLEMENTARY. 

Lecture  XIII.    Government  is  limited    to  the   enforcement  of 

Supplementary.      ^|^j^  auarantv.' 
Rijjlits  of  citizen-  o  J 

ship.  An   Indian,   born  a  member  of   one    of    the 

Indian  tribes  within  the  United  States,  which 
still  exists  and  is  recognized  as  a  tribe  by  the 
Government  of  the  United  States,  who  has 
voluntarily  separated  himself  from  his  tribe,  and 
taken  up  his  residence  among  the  white  citizens 
of  a  State,  but  who  has  not  been  naturalized,  or 
taxed,  or  recognized  as  a  citizen,  either  by  the 
United  States  or  by  the  State,  is  not  a  citizen  of 
the  United  States,  within  the  meaning  of  the 
first  section  of  the  Fourteenth  Article  of  Amend- 
ment of  the  Constitution.^ 

The  provision  in  the  Fourteenth  Amendment 
that  "  no  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States,"  does  not  pre- 
vent a  State  from  passing  such  laws  to  regulate 
the  privileges  and  immunities  of  its  own  citizens 
as  do  not  abridge  their  privileges  and  immuni- 
ties as  citizens  of  the  United  States.^ 

Those  subjects  of  the  Emperor  of  China  who 
have  the  right  to  temporarily  or  permanently 
reside  within  the  United  States,  are  entitled  to 
enjoy  the  protection  guaranteed  by  the  Consti- 
tution and  afforded  by  the  laws."* 

Corporations  are  persons  within  the  meaning 
of  the  clauses  of  the  Fourteenth  Amendment  to 


1  United  States  v.  Cruikshank,  92  U.  S.  542. 

2  Elk  V.  Wilkins,  112  U.  S.  94. 

8  Presscr  v.  Illinois,  116  U.  S.  252. 
*  Yick  Wo  V.  Hopkins,  118  U.  S.  356. 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  66o 

the  Constitution  concerning  the  deprivation  of  lkctirk  xni. 
property,  and  concerning  the  equal  protection  of  Ki''15^ts"f '.'mz^.n 
the  laws.^  ship. 

2.    Privileges  and  Immunities  of  Citizens. 

The  privileges  and  immunities  of  citizens  of  Privileges  and 
the   United   States,   as  distincruished    from   the  *"l"^"""'"^ '^'''^^ 

.    .  ...  .  '^  Still  I-  iii;;y  not 

privileges  and  immunities  of  citizens  of  the  take  away. 
States,  are,  indeed,  protected  by  this  amend- 
ment ;  but  those  are  privileges  and  immunities 
arising  out  of  the  nature  and  essential  character 
of  the  National  Government,  and  granted  or  se- 
cured by  the  Constitution  of  the  United  States.^ 
A  trial  by  jury  in  suits  at  common  law  pend- 
ing in  the  State  courts  is  not  a  privilege  or  im- 
munity of  national  citizenship,  which  the  States 
are  forbidden  Ry  the  Fourteenth  Amendment  of 
the  Constitution  to  abridge.^ 

3.   Limitations  upon  State  Poioers. 

The  article  provides  that  "no  State  shall  Limitations  upon 
make  or  enforce  any  law  which  shall  abridge  gt^te '"^'^''  '**  * 
the  privileges  or  immunities  of  citizens  of  the 
United  States."  That  limitation  we  have  al- 
ready considered.  It  further  provides :  "  nor 
shall  any  State  deprive  any  person  of  life,  liberty, 
or  property,  without  due  process  of  law ;  nor 
deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws."  On  these  pro- 
hibitions there  are  many  decisions. 

^  Santa  Clara  County  v.  Southern  Pacific  Bailroad,  118  U.  S. 
394,  and  Pemlnna  Mining  Co.  v.  Pennsylvania,  125  U.  S.  181. 
2  In  re  Kcmmler.  136  U.  S.  43H,  448. 
8  Walker  V.  Sauvinet,  92  U.  S.  90. 


CG4 


SUrrLEMENTARY. 


I.ECTUKE    Xlll. 

Siippleiiieiitary. 
I.iinilatioii.s  upon 
tlie  powers  of  a 
State. 


Due  process  of 
law  defined. 


Fourteenth 
Aniendnient. 
limitations  upon 
the  powers  of  a 
State. 


In  a  very  late  case  it  was  held,  on  careful 
consideration  of  a  statute  of  California,  providing 
for  the  widening  of  a  street  in  San  Francisco, 
that  it  provided  due  process  of  law  for  takiiig 
the  property  necessary  for  that  purpose ;  and 
that  mere  errors  in  the  administration  of  a  State 
statute  which  was  not  repugnant  to  the  Consti- 
tution, would  not  authorize  the  court  to  hold 
that  the  State  had  deprived,  or  was  about  to  de- 
prive a  party  of  his  property  without  due  pro- 
cess of  law.^ 

Law,  in  its  regular  course  of  administration 
through  the  courts  of  law,  is  due  process  of  law, 
and,  when  it  is  secured  by  the  law  of  the  State, 
the  requirements  of  the  Fourteenth  Amendment 
are  satisfied.  Due  process  of  law,  within  the 
meaning  of  that  amendment,  is  secured,  if  the 
laws  operate  on  all  alike,  and  do  not  subject 
the  individual  to  an  arbitrary  exercise  of  the 
powers  of  government.^ 

When  a  person  accused  of  crime  within  a 
State  is  subjected,  like  all  other  persons  in  the 
State,  to  the  law  in  its  regular  course  of  admin- 
istration in  the  courts  of  justice,  the  judgments 
so  arrived  at  cannot  be  held  to  be  such  an  un- 
restrained and  arbitrary  exercise  of  power  as  to 
be  utterly  void.^ 

The  section  of  the  act  entitled  "  An  act  to 
protect  all  citizens  in  their  civil  and  legal  rights," 
approved  March  1,  1875,  18  Stat.  335,  c.  114, 


1  Lent  V.  Tillson,  140  U.  S.  316. 

2  Leeper  v.  Texas,  139  U.  S.  712. 
8  In  re  Converse,  137  U.  S.  624. 


SUBJECTS    NOT    DJSCUSSED    ELSEWHERE.  005 

which  enacts  that  "  no  citizen,  possessing  all  lkctikk  xiii. 
other  qualifications  which  are  or  niav  be  pre- ^,"i''''"'"';;"'''-y- 
scribed  by  law,  shall  be  dis(]ualifie(l  from  s(n'vice  Am.-n.imeiit. 

1  I'l    •  •  i       f  ,1       TT     •■      1  l.iiiiilalioMS  Upon 

as  grand  or  petit  juror  m  any  court  ot  tlie  United  u.e  powers  of  a 
States,  or  of  any  State  on  account  of  race,  color,  state, 
or  previous  condition  of  servitude  ;  and  any  officer 
or  other  person,  charged  with  any  duty  in  the  se- 
lection or  summoning  of  jurors,  who  shall  ex- 
clude or  fail  to  summon  any  citizen  for  the  cause 
aforesaid,  shall,  on  conviction  thereof,  be  deemed 
guilty  of  a  misdemeanor,  and  be  fined  not  more 
than  ^5000,"  was  examined  and  held  author- 
ized by  the  Thirteenth  and  Fourteenth  Amend- 
ments of  the  Constitution.  The  inhibition 
contained  in  the  Fourteenth  Amendment  means 
that  no  agency  of  the  State,  or  of  the  officers  or 
agents  by  whom  her  powers  are  exerted,  shall 
deny  to  any  person  within  her  jurisdiction  the 
equal  protection  of  the  laws.  Whoever  by  virtue 
of  his  public  position  under  a  State  government 
deprives  another  of  life,  liberty,  or  property, 
without  due  process  of  law,  or  denies  or  takes 
away  the  equal  protection  of  the  laws,  violates 
that  inhibition,  and  as  he  acts  in  the  name  of 
and  for  the  State,  and  is  clothed  with  her  power, 
his  act  is  her  act.  Otherwise  the  inhibition  has 
no  meaning,  and  the  State  has  clothed  one  of 
her  agents  with  power  to  annul  or  evade  it.^ 

The  State  of  Louisiana  passed  an  act  entitled 
"An  act  to  regulate  proceedings  in  contestation 
between    persons    claiming    a    judicial    office." 

1  Ex  parte  Virginia,  100  U.  S.  339. 


666  SUPPLEMENTARY. 

lkctttre  XIII.  Held,  that  the  State,  by  proceedings  under  this 
Supplementary.      ^  which  resulted  iu  a  iudg-ment  adverse  to  the 

Fourteenth  '  ... 

Amendment.  title  of  the  plaintiff  ill  error  to  a  certain  judicial 
Jiirp^TwlTofr  office,  did  not,  through  her  judiciary,  violate 
state.  that  clause   of   the  Fourteenth  Amendment  to 

the  Constitution  of  the  United  States  which  de- 
clares, "  nor  shall  any  State  deprive  any  person 
of  life,  liberty,  or  property,  without  due  process 
of  law."  ^ 

Down  to  the  time  of  the  adoption  of  the 
Fourteenth  Amendment,  it  was  not  supposed 
that  statutes  regulating  the  use,  or  even  the 
price  of  the  use,  of  private  property  necessarily 
deprived  an  owner  of  his  property  without  due 
process  of  law.  Under  some  circumstances  they 
may,  but  not  under  all.  The  amendment  does 
not  change  the  law  in  this  particular ;  it  simply 
prevents  the  States  from  doing  that  which  will 
operate  as  such  deprivation.^ 

A  law  authorizing  the  imposition  of  a  tax  or 
assessment  upon  property  according  to  its  value 
does  not  infringe  that  provision  of  the  Four- 
teenth Amendment  to  the  Constitution,  which 
declares  that  no  State  shall  deprive  any  person 
of  property  without  due  process  of  law,  if  the 
owner  has  an  opportunity  to  question  the  valid- 
ity or  the  amount  of  it,  either  before  that 
amount  is  determined,  or  in  subsequent  proceed- 
ings for  its  collection.^ 

A  statute  of  a  State,  authorizing  any  person 

1  Kennard  v.  Louisiana,  92  U.  S.  480. 

2  ]\iunn  V.  Illinois,  94  U.  S.  li;3. 

*  Hagar  v.  Reclamation  District,  ill  U.  S.  701. 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  0G7 


to  erect  and  maintain  on  his  own  land  a  water- LFXTunK  xiii. 

Supplementary 


mill  and  mill-dam  upon  and  across  any  stream  p„!„.j,.,,„t 


til 


not  navigable,  paying  to  the  owners  of  lands  Ameiidment. 

,     .  .      ,.    .    ,  ,     Limitations  \ipon 

flowed  damages  assessed  in  a  judicial  proceed-  n,^,  powers  of  a 
ing,  does  not  deprive   them  of    their    property  ^^^*«- 
without  due  process  of  law,  in  violation  of  the 
Fourteenth  Amendment.^ 

An  act  making  water  rates  a  charge  upon 
lands  in  a  municipality,  prior  to  the  lien  of  all 
incumbrances,  does  no  violation,  so  far  as  it 
affects  mortcrag-es  on  such  lands  made  after 
the  passage  of  the  act,  to  that  portion  of  the 
Fourteenth  Amendment  to  the  Constitution 
which  declares  that  no  State  shall  deprive  any 
person  of  property  without  due  process  of 
law.^ 

The  statute  of  New  Jersey  of  March  8,  1871, 
providing  for  the  drainage  of  any  tract  of  low 
or  marshy  land  within  the  State,  upon  proceed- 
ings instituted  by  at  least  five  owners  of  sepa- 
rate lots  of  land  included  in  the  tract,  and  for 
the  assessment  by  commissioners,  after  notice 
and  hearing,  of  the  expenses  upon  all  the 
owners,  does  not  deprive  them  of  their  property 
without  due  process  of  law,  nor  deny  to  them 
the  equal  protection  of  the  laws,  within  the 
meaning  of  the  Fourteenth  Amendment  of  the 
Constitution  of  the  United  States.^ 

A  State  statute  for  raising  public  revenue  by 
the  assessment  and  collection  of   taxes,  which 


1  Head  v.  Amoskraf/  Manufacturinfj  Co.,  113  U.  S.  9. 

2  Provident  Institution  for  Savings  v.  Jersey  City,  113  U.  S.  506. 
8  Wiirts  V.  Hodgland,  114  U.  S.  606. 


668  SUPPLEMENTARY. 

Lecture  XIII.  gives  noticG  of  the  proposed  assessment  to  an 
Fouriertr'"''  ^wncr  of  property  to  be  affected,  by  requiring 
Amendment.        him  at  a  time  named  to  present  a  statement  of 

Limitations  upon    ■,   .  ,  •l^     t   •  j^-         i_         r-i  i  • 

the  powers  of  a  ^^^^  property,  With  his  estimate  oi  its  vahie,  to  a 
state.  designated    official   charged   with   the    duty   of 

receiving  the  statement,  which  fixes  time  and 
place  for  public  sessions  of  other  officials,  at 
which  this  statement  and  estimate  are  to  be 
considered,  where  the  official  valuation  is  to  be 
made,  and  when  and  where  the  party  interested 
has  the  right  to  be  present  and  to  be  heard ; 
and  which  affords  him  opportunity  in  a  suit  at 
law  for  the  collection  of  the  tax,  to  judicially 
contest  the  validity  of  the  proceeding,  does  not 
necessarily  deprive  him  of  his  property  without 
"due  process  of  law,"  within  the  meaning  of 
the  Fourteenth  Amendment.^ 

A  State  law  for  the  valuation  of  property 
and  the  assessment  of  taxes  thereon,  which  pro- 
vides for  the  classification  of  property,  subject  to 
its  provisions,  into  different  classes,  which  makes 
for  one  class  one  set  of  provisions  as  to  modes 
and  methods  of  ascertaining  the  value,  and  as 
to  right  of  appeal,  and  different  provisions  for 
another  class  as  to  those  subjects,  but  which 
provides  for  the  impartial  application  of  the 
same  means  and  methods  to  all  constituents  of 
each  class,  so  that  the  law  shall  operate  equally 
and  uniformly  on  all  persons  in  similar  circum- 
stances, denies  to  no  person  affected  by  it  "  equal 
protection  of  the  laws  "  within  the  meaning  of 

1  Kentucky  Railroad  Tax  Cases,  115  U.  S.  321. 


SUBJECTS    NOT    DISCUSSKl)    KLSKWIIKKE.  669 

the  Fourteenth  Amendment  to  the  Constitution  LECTimK  xiii. 

of    the  United  States.^  Su,.p.emeuta'ry. 

tourtoeiitn 

A  statute  of  a  State  requiring  every  railroad  Aim-ndmont. 

.        ,■,        oiij  1  1  -i-      LiinitationB  upon 

corporation  m  the  fetate  to  erect  and  mamtam  ,^4,  po^^^.s  of  a 
fences  and  cattle  guards  on  the  sides  of  its  road,  s^*^- 
and,  if  it  does  not  do  so,  making  it  liable  in 
double  the  amount  of  damages  occasioned 
thereby  and  done  by  its  agents,  cars,  or  engines 
to  cattle  or  other  animals  on  its  road,  does  not 
deprive  a  railroad  corporation,  against  which 
such  double  damages  are  recovered,  of  its  prop- 
erty without  due  process  of  law,  or  deny  it  the 
equal  protection  of  the  laws  in  violation  of  the 
Fourteenth  Article  of  Amendment.^ 

The  provisions  in  the  Fourteenth  Amend- 
ment, that  "no  State  shall  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the 
laws,"  do  not  prohibit  a  State  from  requiring 
for  the  admission  within  its  limits  of  a  corpora- 
tion of  another  State  such  conditions  as  it 
chooses.^ 

If  the  legislature  of  a  State,  in  the  exercise  of 
its  power  of  taxation,  directs  the  expense  of 
laying  out,  grading  or  repairing  a  street  to  be 
assessed  upon  the  owners  of  lands  benefited 
thereby ;  and  determines  the  whole  amount  of 
the  tax,  and  further  determines  what  lands  are 
benefited  by  the  improvement ;  and  provides 
for  notice  to  and  hearing  of  each  owner,  at  some 
stage  of  the  proceedings,  upon  the  question  what 

^  Kentucky  Railroad  Tax  Cases,  115  U.  S.  321. 

'^  Missouri  Pacific  Railway  Co.  v.  Humes,  115  U.  S.  512. 

^  Pembina  Mining  Co.  v.  Pennsylvania,  125  U.  S.  181. 


670  SUPPLEMENTARY. 

le<^ture  XIII.     proportion  of  the  tax  shall  be  assessed  upon  his 
suppiomenury.    j^^^,^^     ^^^^^^^  -^  ^^  talun^^  of  his  property  without 

Aineiiduieut.        due  process  of  law,  in  violation  of  the  Fourteenth 

the  powers  of  a     Amendment/ 

sta««-  The  statute  of  Kansas,  which   provides  that 

"  every  railroad  company  organized  or  doing 
business  in  this  State  shall  be  liable  for  all 
damages  done  to  any  employe  of  such  company, 
in  consequence  of  any  negligence  of  its  agents, 
or  by  any  mismanagement  of  its  engineers  or 
other  employes,  to  any  person  sustaining  such 
damage,"  does  not  deprive  a  railroad  company  of 
its  property  witliout  due  process  of  law;  and 
does  not  deny  to  it  the  equal  protection  of  the 
laws;  and  is  not  in  conflict  with  the  Fourteenth 
Amendment  to  the  Constitution  of  the  United 
States  in  either  of  these  respects.^ 

The  Kentucky  statute  of  March  24,  1882, 
which  authorizes  the  city  government  of  Louis- 
ville to  open  and  improve  streets  and  assess  the 
cost  thereof  on  the  owners  of  adjoining  lots,  does 
not  deprive  such  owners  of  their  property  with- 
out due  process  of  law,  and  does  not  deny  them 
the  equal  protection  of  the  laws,  and  is  not  re- 
pugnant to  Section  1  of  the  Fourteenth  Amend- 
ment to  the  Constitution  of  the  United  States.^ 

The  provision  in  the  Code  of  Iowa,  Section 
1289,  which  authorizes  the  recovery  of  "  double 
the  value  of  the  stock  killed  or  damages  caused 
thereto,"  by  a  railroad,  when  the  injury  took  place 


1  Spencer  v.  Merchant,  125  U.  S.  345. 

2  Missouri  Pacijic  Bailway  Co.  v.  Maclcey,  127  U.  S.  205. 
8  Walston  V.  Nevin,  128  U.  S..  678. 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  OTl 


at  ca  point  on  the  road  where  the  corporation  LFXTrnK  xni. 

Snpplc'ineiitary. 


t)i 


had  a  riiilit  to  erect  a  fence  and  failed  to  do  so, ' J'^'',^'"" 

O  l'(>urt(;cii 

and  wdien  it  was  not  "  occasioned  by  the  wilful  Amemimeiit. 

,«,,  1-  ,■>■>•  1    •  n'    1   Limitations  upon 

act  01  the  owner  or  his  agent,    is  not  in  contlict  the  powers  of  a 
with  the  Fourteenth  Amendment  to  the  Const i- ^^ate. 
tution,  either  as  depriving  the  company  of  prop- 
erty without  due  process  of  law,  or  as  denying 
to  it  the  equal  protection  of  the  laws.^ 

A  tax  which  is  imposed  by  a  State  statute 
upon  "  the  corporate  franchise  or  business  "  of 
all  corporations  incorporated  under  any  law  of 
the  State  or  of  any  other  State  or  country,  and 
doing  business  within  the  State,  and  which  is 
measured  by  the  extent  of  the  dividends  of  the 
corporation  in  the  current  year,  is  a  tax  upon 
the  right  or  privilege  to  be  a  corporation  and  to 
do  business  within  the  State  in  a  corporate 
capacity,  and  is  not  a  tax  upon  the  privilege  or 
franchise  which,  when  incorporated,  the  com- 
pany may  exercise  ;  and  being  thus  construed, 
its  imposition  upon  the  dividends  of  the  company 
does  not  violate  the  provisions  of  the  statute 
exempting  bonds  of  the  United  States  from 
taxation,  12  Stat.  346,  c.  33,  §  2,  although  a 
portion  of  the  dividends  may  be  derived  from 
interest  on  capital  invested  in  such  bonds.^ 

Such  a  tax  is  not  in  conflict  with  the  last 
clause  of  the  tirst  section  of  the  Fourteentli 
Amendment  to  the  Constitution  of  the  United 
States,  declaring  that  no  State  shall  deprive  any 


1  Minneapolis  &  St.  Lords  Raihcay  v.  Beckivith,  129  U.  S.  26. 
^  Home  Insurance  Compawj  v.  New  York,  131  U.  S.  694. 


672  SUPPLEMENTARY. 

Lecture  XIII.     person  witliin  its  jurisdiction  of  the  equal  pro-, 

Supplementary,      ^ection  o£  the  laWS.^ 

Fourteenth 

Amendment.  The   provisions    ill   the   Revised    Statutes    of 

t^jiltowlTofr  Texas,  articles  1242-1245,  which,  as  construed 
State.  by  the  highest  court  of  the  State,  convert  an 

appearance  by  a  defendant  for  the  sole  purpose 
of  questioning  the  jurisdiction  of  the  court,  into 
a  general  appearance  and  submission  to  the 
jurisdiction  of  the  court,  do  not  violate  the  pro- 
vision in  the  Fourteenth  Amendment  to  the 
Constitution  which  forbids  a  State  to  deprive 
any  person  of  life,  liberty,  or  property  without 
due  process  by  law.^ 

No  State  can  deprive  particular  persons  or 
classes  of  persons  of  equal  and  impartial  justice 
under  the  law,  without  violating  the  provisions 
of  the  Fourteenth  Amendment  to  the  Constitu- 
tion.^ 

State  legislation,  simply  forbidding  the  defend- 
ant to  come  into  court  and  challenge  the  validity 
of  service  upon  him  in  a  personal  action  without 
surrendering  himself  to  the  jurisdiction  of  the 
court,  but  which  does  not  attempt  to  restrain  him 
from  fully  protecting  his  person,  his  property,  and 
his  rights  against  any  attempt  to  enforce  a  judg- 
ment rendered  without  due  process  of  law,  is  not 
in  violation  of  the  Fourteenth  Amendment.* 

A  person  is  not  denied  the  equal  protection  of 
the  laws,  nor  deprived  of  liberty  without  due 


1  Home  Insurance  Company  v.  N^ew  York,  134  U.  S.  594. 

2  York  V.  Texas,  137  U.  S.  15. 

3  Caldwell  v.  Texas,  137  U.  S.  692. 

4  Kaufman  v.  WooUers,  138  U.  S.  285. 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  ('>'•'> 

process  of  law,  in  violation  of  the  Fourteenth  lecturk  xiii. 
Amendment,  by  beinor  tried    and   sentenced   to  •J"i>i'ieinemary. 

'       •/  d  fourteenth 

imprisonment  by  a  judge  who,  although  appointed  AmeiKimont. 

^  ,^  ',1         ,  l^         •!  •  •      i         Limitations  iii)on 

by  the  governor  without  authority,  is  a  judge  ^^e  powers  of  a 
de  facto  of  a  court  de  jure,  by  the  law  of  the  state. 
State  as  declared  by  its  highest  court. ^ 

An  ordinance  passed  by  the  city  of  New 
Orleans,  under  authority  conferred  by  the  legis- 
lature of  Louisiana,  prohibiting  the  keeping  of 
any  private  market  within  six  squares  of  any  pub- 
lic market  of  the  city,  under  penalty  of  being 
sentenced,  upon  conviction  before  a  magistrate, 
to  pay  a  fine  of  twenty-hve  dollars,  and  to  be 
imprisoned  for  not  more  than  thirty  days  if  the 
fine  is  not  paid,  does  not  violate  the  Fourteenth 
Amendment  to  the  Constitution." 

State   Statutes  regulating  or  prohibiting  the  statutes  re^rniat- 
sale  of  intoxicating  liquors  have  been  the  subject  "afi^,'!,*i"ki'iiois  m!t 
of  a  great  deal  of  litigation,  and  their  constitu-  affected  by  this 
tionality  has  been  drawn  in  question.     In  most ' 
of  the  cases  the  question  has  been  whether  the 
statute  before  the  court  was  or  was  not  a  regu- 
lation of  commerce.     That  class    of   cases  has 
already  been  noticed.      There   are,   however,  a 
few  cases  in  which  it  has  been  claimed  that  the 
statute  deprived  the  citizen  of  rights,  privileges, 
or    immunities    protected    by   the    Fourteenth 
Amendment. 

It  is  well  settled  that  the  sale  of  spirituous 
and  intoxicating  liquors  by  retail,  and  in  small 


»  In  re  Manning.  139  U.  S.  504. 

2  Natal  V.  Louisiana,  139  U.  S.  621. 


liquors 


(174  SUPPLEMENTARY. 

lrctiki.;  XIII.  qnantities,  may  be  regulated,  or  may  be  abso- 
KCrrtelM.u,'  ^^'t^^y  prohibited  by  State  legislation,  without 
Amendment,  does  vioUitiug  the  Coiistitutiou  or  laws  of  the  United 

not  affect  statutes  c^,     ,        i         ny  ••„!  j.*  t 

regiiiatin"  sales  ^^^tes.  iiiveu  a  municipal  corporation,  when 
of  intoxicating  thereto  duly  authorized  by  the  law  of  the  State, 
may,  in  the  exercise  of  the  police  power  of  the 
State,  license  or  refuse  to  license  persons  to  sell 
intoxicating  liquors  in  that  way,^  without  violat- 
lating  either  the  commerce  clause  of  the  Consti- 
tution or  the  Fourteenth  Amendment. 

The  usual  and  ordinary  legislation  of  the 
States,  regulating  or  prohibiting  the  sale  of 
intoxicating  liquors,  raised  no  question  under  the 
Constitution  of  the  United  States  prior  to  the 
Fourteenth  Amendment  of  that  instrument. 
The  right  to  sell  intoxicating  liquors  is  not  one 
of  the  privileges  and  immunities  of  citizens  of 
the  United  States,  which  by  that  amendment  the 
States  were  forbidden  to  abridge.^ 

The  restraining  provisions  of  the  Fourteenth 
Amendment  are  not  infringed  by  the  Statutes  of 
Iowa  authorizing  its  courts,  when  a  person  vio- 
lates an  injunction  restraining  him  from  selling 
intoxicating  liquors,  to  punish  him  as  for  con- 
tempt by  fine  or  imprisonment  or  both.  Pro- 
ceedino:s  accordins;  to  the  common  law  for 
contempt  of  court  are  not  subject  to  the  right  of 
trial  by  jury,  and  are  '"  due  process  of  law," 
within  the  meaning  of  the  Fourteenth  Amend- 
ment to  the  Constitution.* 


1  Crowley  v.  Christenspu,  137  U.  S.  8fi.  2ib. 

^  Bartemryrr  v.  Tav-a,  14  Wall.  '21. 

*  Eilenbcckn-  v.  I'hjmonUi  Cuiiiily,  134  IJ.  S.  31. 


SUBJECTS    NOT    DISCUSSED    LLSEWIIKKE.  G75 

If  a  State  deems  the  absokito  prohibition  of  lectukk  xiri. 
the  manufacture  and  sale,  within  its  limits,  of  ;'^''Pi'''^''"t'""i'y- 
intoxicating    liquors    for    other    than    medical,  Aineii<im..iit  dots 

.  •  f,  1  c       1        •  1         1       not  affect  statiif en 

scientihc,    and    manuiacturmg    purposes,   to    be  re{r„iiiiiii<rsaie» 
necessary  to  the  peace  and  security  of  society,  ^f  ii'toxicaUug 

,  .    ,  .  ,       .    ,       .        liquors. 

the  courts  cannot,  witliout  usurping  legishitive 
functions,  override  the  will  of  the  people  thus 
expressed.  And  if,  in  the  judgment  of  the  legis- 
lature, the  manufacture  of  intoxicating  liquors 
for  the  maker's  own  use,  as  a  beverage,  would 
tend  to  cripple,  if  it  did  not  defeat,  the  effort  to 
guard  the  community  against  the  evils  attend- 
ant upon  the  excessive  use  of  such  liquors,  it  is 
not  for  the  courts,  upon  their  views  as  to  what 
is  best  and  safest  for  the  community,  to  disre- 
gard the  legislative  determination  of  that  ques- 
tion. It  cannot  be  said  that  Government  inter- 
feres with  or  impairs  any  one's  constitutional 
rights  of  liberty  or  of  property,  when  it  deter- 
mines that  the  manufacture  and  sale  of  intoxi- 
cating; drinks,  for  Q-eneral  or  individual  use  as  a 
beverage,  are,  or  may  become,  hurtful  to  society, 
and  constitute,  therefore,  a  business  in  which  no 
one  may  lawfully  engage.  This  •conclusion  is 
unavoidable  unless  the  Fourteenth  Amendment 
of  the  Constitution  takes  from  the  States  of  the 
Union  those  powers  of  police  that  were  reserved 
at  the  time  the  orig;inal  constitution  was 
adopted.^ 

Following   Mugler  v.   Kansas,   it   was    again 
held  that  a  State  has  the  right  to  prohibit  or 

1  Mugler  v.  Kansas,  123  U.  S.  023,  0G2,  063. 


67G 


SUPPLEMENTARY. 


Lecture  XIII.     restrict  the  manufacture  of  intoxicating  liquors 
SupiUen,«ntar.y.    ^^^^1^^^  j^s  limits  ;   to  prohibit  all  sale  and  traffic 

The  Fourteenth  _  .        . 

Aineiiiimeiit  does  in   tlicm   in   the  State ;   to  inflict  penalties  for 

not  affect  statutes 
regulating  sales 


of  intoxicating 
liquors. 


such  manufacture  and  sale ;  and  to  provide 
regulations  for  the  abatement,  as  a  common  nui- 
sance, of  the  property  used  for  such  forbidden 
purposes;  and  that  such  legislation  does  not 
abridge  the  liberties  or  immunities  of  citizens  of 
the  United  States,  nor  deprive  any  person  of 
property  without  due  process  of  law,  nor  contra- 
vene the  provisions  of  the  Fourteenth  Amend- 
ment of  the  Constitution  of  the  United  States.' 
The  Act  of  August  8,  1890,  26  Stat.  313,  c. 
728,  enacting  "  that  all  fermented,  distilled,  or 
other  intoxicating  liquors  or  liquids  transported 
into  any  State  or  Territory,  or  remaining  therein 
for  use,  consumption,  sale,  or  storage  therein, 
shall  upon  arrival  in  such  State  or  Territory  be 
subject  to  the  operation  and  effect  of  the  laws  of 
such  State  or  Territory  enacted  in  the  exercise  of 
its  police  powers,  to  the  same  extent  and  in  the 
same  manner  as  though  such  liquids  or  liquors 
had  been  produced  in  such  State  or  Territory, 
and  shall  not*  be  exempt  therefrom  by  reason  of 
being  introduced  therein  in  original  packages  or 
otherwise,"  is  a  valid  and  constitutional  exercise 
of  the  legislative  power  conferred  upon  Congress  ; 
and,  after  that  act  took  effect,  such  liquors  or 
liquids,  introduced  into  a  State  or  Territory  from 
another  State,  whether  in  original  packages  or 
otherwise,  became    subject  to  the  operation  of 


1  Kidd  V.  Pearson,  128  U.  S.  1. 


SUBJECTS    NOT    DISCUSSED    ELSJ:\V11EKE.  677 

such  of  its  then  existing  laws  as  had  been  prop-  lectvkk  xiii. 
erly  enacted  in  the  exercise  of  its  police  powers,  The'F'o,n','!.enu^ 
among  which   was   the    statute    in   question   as  Amendiut'iii  .iocs 

T     1    ,       ,,  ,.,.  ,         /.,.  1  n<it  affect  statiili'S 

applied  to  the  petitioner  s  ortence.  re-iuiatinKsaieH 

of  intoxicating 
4.    The  Apportionment  of  Representation. 

Before  the  war,  or,  to  speak  more  accurately,  Fourteenth 
before  the  adoption  of  the  Fourteenth  Amend- -J"""'"'""-  ,  , 

r  Apportionment  of 

ment,  the  apportionment  of  representation  representation, 
among  the  States  was  determined  "  by  adding 
to  the  whole  number  of  free  persons,  including 
those  bound  to  service  for  a  term  of  j^ears,  and 
excluding  Indians  not  taxed,  three-fifths  of  all 
other  persons."  But  when  the  slaves  became 
freemen,  "five-fifths"  of  those  denominated  as 
"  all  other  persons  "  became  subject  to  be  counted 
in  the  enumeration ;  and  thus  the  war  resulted 
in  increasing  the  political  power  of  the  South  in 
Congress.  By  the  second  section  of  the  Four- 
teenth Amendment  it  was  intended  to  protect 
the  emancipated  slaves  in  the  exercise  of  their 
new  political  privileges. 

5.    Exclusion  from  the  Exercise  of  Political  Privileges, 

On  the  4th  of  July,  1868,  President  Johnson  political  disar 
proclaimed  a  full  pardon  and  amnesty  "  uncondi-  ^'^>*'^- 
tionally  and  without  reservation,  to  all  and  to 
every  person  who  directly  or  indirectly  partici- 
pated in  the  late  insurrection  or  rebellion,  ex- 
cepting such  person  or  persons  as  may  be  under 
presentment  or  indictment  in  any  court  of  the 

1  In  re  Bahrer,  Pctilioner,  140  U.  S.  545. 


678 


SUPPLEMENTARY. 


Lecture  XIIL 
Supplenieutary. 
Political  disa- 
bilities. 


United  States  having  competent  jurisdiction, 
upon  a  charge  of  treason  or  other  felony."^  A 
few  days  later  the  Fourteenth  Amendment  was 
proclaimed,  by  which  certain  classes  of  the 
persons  covered  by  the  proclamation  of  pardon 
were  made  ineligible  for  holding  certain  offices, 
unless  Congress  should,  "  by  a  vote  of  two- 
thirds  of  each  House,  remove  such  disability." 

The  index  of  volume  16  of  the  Statutes  at 
Large,  from  page  1181  to  page  1206,  is  taken 
up  with  the  names  of  persons  whose  disabilities 
were  so  removed.  On  the  22d  of  May,  1872, 
Congress  enacted,  two-thirds  concurring,  "•  that 
all  political  disabilities  imposed  by  the  third 
section  of  the  Fourteenth  Article  of  Amendments 
of  the  Constitution  of  the  United  States  are 
hereby  removed  from  all  persons  whomsoever, 
except  Senators  and  Representatives  of  the 
Thirty-sixth  and  Thirty-seventh  Congresses, 
officers  in  the  judicial,  military,  and  naval  ser- 
vice of  the  United  States,  heads  of  departments, 
and  foreign  ministers  of  the  United  States."  ^ 

The  whole  number  thus  excepted  from  the 
operation  of  the  statute  could  not  have  been  very 
large.  Since  its  passage  the  disaljilities  of  one 
hundred  and  sixty-nine  of  that  number  have 
been  removed  by  special  acts  of  Congress. 

6.    Provisions  as  to  Public  Debts. 

The  public  debt.        Little  Comment  is  necessary  upon  the  provis- 
ions of  section  4,  relating  to  the  public  debt  of 


1  15  Stat.  702,  703. 


2  17  Stat.  142,  c.  0.3. 


SUBJECTS    NOT    DISCUSSED    ELSEWHERE.  07') 

the  United  States,  to  debts  incurred  in  aid  of  the  le<  ti-kk  xiii. 
'rebellion,  and  to  claims  for  the  loss  or  enianci- ;,.?'''' 'T,'.'''^f7f 

'  Ine  public  debt. 

j)ation  of  slaves.  As  to  the  former,  it  is  sufficient 
to  say  that  it  was  looked  upon  by  those  who 
regarded  the  emission  of  bills  of  credit  in  the 
form  of  circulatincr  notes  as  unconstitutional, 
as  a  constitutional  assumption  of  the  debt  so 
created.     As  to  the  latter,  nothing  need  be  said. 

C.    The  Fifteenth  Amendment. 

The  Fifteenth  Amendment  to  the  Constitution  Fifteenth  Amend- 
does  not  confer  the  right  of  suffrage ;  but  it  ™^"*" 
invests  citizens  of  the  United  States  with  the 
right  of  exemption  from  discrimination  in  the 
exercise  of  the  elective  franchise  on  account  of 
their  race,  color,  or  previous  condition  of  servi- 
tude, and  empowers  Congress  to  enforce  that 
right  by  "appropriate  legislation." 

The  power  of  Congress  to  legislate  at  all  upon 
the  subject  of  voting  at  State  elections  rests 
upon  this  amendment,  and  can  be  exercised  by 
providing  a  punishment  only  when  the  wrongful 
refusal  to  receive  the  vote  of  a  qualified  elector 
at  such  elections  is  because  of  his  race,  color,  or 
previous  condition  of  servitude. 

The  third  and  fourth  sections  of  the  Act  of 
May  31,  1870  (16  Stat.  140),  not  being  confined 
in  their  operation  to  unlawful  discrimination  on 
account  of  race,  color,  or  previous  condition  of 
servitude,  are  beyond  the  limit  of  the  Fifteenth 
Amendment,  and  unauthorized.^ 

1  United  States  v.  Reese,  92  U.  S.  214. 


080  SUPPLEMENTARY. 

Lecture  XIII.         An    indictment    wliicli    charges    in    the    first 
suppicmoutary     ^^^^^^^  ^-^^^^  ^^le  defendants  conspired  to  intiini- 

Fifteentli  Amend-  ^ 

toent.  date  A.  B.,  a  citizen  of  African  descent,  in  the 

exercise  of  his  right  to  vote  for  a  member  of 
the  Congress  of  the  United  States,  and  that  in 
the  execution  of  that  conspiracy  they  beat, 
bruised,  wounded,  and  otherwise  maltreated  him; 
and  in  the  second  count  that  they  did  this  on 
account  of  his  race,  color,  and  previous  condition 
of  servitude,  by  going  in  disguise  and  assaulting 
him  on  the  public  highway  and  on  his  own 
premises,  contains  a  sufhcient  description  of 
an  offence  embraced  w^ithin  the  provisions  of 
§§  5508,  5520,  Rev.  Stat. 

Although  it  is  true  that  the  Fifteenth  Amend- 
ment gives  no  affirmative  right  to  the  negro  to 
vote,  yet  there  are  cases,  some  of  which  are 
stated  by  the  court,  in  which  it  substantially 
confers  that  right  upon  him.  United  States  v. 
Reese,  92  U.  S.  214,  qualified  and  explained.^ 


1  Ex  parte  Yarbrouyh,  110  U.  S.  65. 


I. 

[THE   CONSTITUTION    OF   THE    UNITED 
STATES   OF   AMERICA.] 

We  the  People  of  the  United  States,  in  Order  to  form  Appendix, 
a  more  perfect  Union,  establish  Justice,  insure  domes-  ^^^  Constitution, 
tic  Tranquility,  provide  for  the  common  defence,  pro- 
mote the  general  Welfare,  and  secure  the  Blessings  of 
Liberty  to  ourselves  and  our  Posterity,  do  ordain  and 
establish  this  Constitution  for  the  United  States  of 
America.^ 

ARTICLE.  I. 

Section.  1.  All  legislative  Powers  herein  granted  shall 
be  vested  in  a  Congress  of  the  United  States,  which  shall 
consist  of  a  Senate  and  House  of  Representatives.^ 
Section.  2.  The  House  of  Representatives  shall  be 
composed  of  IMembers  chosen  every  second  Year  by  the 
People  of  the  several  States,  and  the  Electors  in  each 
State  shall  have  the  Qualifications  requisite  for  Electors 
of  the  most  numerous  Branch  of  the  State  Legislature.^ 

No  Person  shall  be  a  Representative  who  shall  not  have 
attained  to  the  Age  of  twenty  five  Years,  and  been  seven 

1  Chisholm  v.  Georgia,  2  Dall.  419;  McCulIocb  v.  Maryland,  4  Wheat. 
316;  Brown  v.  Maryland,  12  AVheat.  419;  Barron  v.  The  Mayor  and 
City  Council  of  Baltimore,  7  Pet.  243;  Lane  County  v.  Oregon,  7  Wall. 
71 ;  Texas  v.  White,  7  Wall.  700. 

2  Hayburn's  Case,  2  Dall.  409  (notes) ;  United  States  v.  Harris.  lOG 
U.  S.  629;  In  re  Neagle,  1.3.5  U.  S.  1. 

8  Ex  parte  Yarbrough,  110  U.  S.  651 ;  In  re  Green,  134  U.  S.  377. 

G81 


682  APPENDIX. 

Appendix.  Years  a  Citizen  of  the  United  States,  and  who  shall  not, 

The  Constitution,  when  elected,  be  an  Inhabitant  of  that  State  in  which  he 
shall  be  chosen. 

Representatives  and  direct  Taxes  shall  be  apportioned 
among  the  several  States  which  may  be  included  within 
this  Union,  according  to  their  respective  Numbers,  which 
shall  be  determined  by  adding  to  the  whole  Number  of 
free  Persons,  including  those  bound  to  Service  for  a  Term 
of  Years,  and  excluding  Indians  not  taxed,  three  fifths 
of  all  other  Persons.  The  actual  Enumeration  shall  be 
made  within  three  Years  after  the  first  Meeting  of  the 
Congress  of  the  United  States,  and  within  every  subse- 
quent Term  of  ten  Years,  in  such  Manner  as  they  shall 
by  Law  direct.  The  Number  of  Representatives  shall 
not  exceed  one  for  every  thirty  Thousand,  but  each  State 
shall  have  at  Least  one  Representative ;  and  until  such 
enumeration  shall  be  made,  the  State  of  New  Hampshire 
shall  be  entitled  to  chuse  three,  Massachusetts  eight, 
Rhode-Island  and  Providence  Plantations  one,  Connecti- 
cut five.  New  York  six.  New  Jersey  four,  Pennsylvania 
eight,  Delaware  one,  Maryland  six,  Virginia  ten.  North 
Carolina  five,  South  Carolina  five,  and  Georgia  three. ^ 

When  vacancies  happen  in  the  Representation  from 
any  State,  the  Executive  Authority  thereof  shall  issue 
Writs  of  Election  to  fill  such  Vacancies. 

The  House  of  Representatives  shall  chuse  their  Speaker 
and  other  Ofiicers ;  and  shall  have  the  sole  Power  of 
Impeachment. 

Section.  3.  The  Senate  of  the  United  States  shall  be 
composed  of  two  Senators  from  each  State,  chosen  by 
the  Legislature  thereof,  for  six  Years ;  and  each  Senator 
shall  have  one  Vote. 

Immediately  after  they  shall  be  assembled  in  Conse- 
quence of  the  first  Election,  they  shall  be  divided  as. 
equally  as  may  be  into  three  Classes.     The  Seats  of  the 


1  Dodge  V.  Woolsey,  18  How.  331;  Loughborough  v.  Blake,  5  Wheat. 
317;  Pacific  Insurance  Co.  v.  Soule,  7  Wall.  433;  Veazie  Bank  v.  Fenno, 
8  Wall.  533;  Scholey  v.  Rew,  23  Wall.  331;  De  Treville  v.  Smalls,  98 
U.  S.  517 ;  Springer  v.  United  States,  102  U.  S.  586. 


THE    CONSTITUTION.  683 

Senators  of  the  first  Class  shall  be  vacated  at  the  Ex-  Appendix, 
pii-ation  of  the  second  Year,  of  the  second  Class  at  the  ''•'«  Coustitution. 
Expiration  of  the  fourth  Year,  and  of  the  third  Class  at 
the  Expiration  of  the  sixth  Year,  so  that  one  third  may  be 
chosen  every  second  Year ;  and  if  Vacancies  happen  by 
llesignation,  or  otherwise,  during  the  Kecess  of  the 
Legislature  of  any  State,  the  Executive  thereof  may 
make  temporary  Appointments  until  the  next  Meeting 
of  the  Legislature,  which  shall  then  fill  such  Vacancies. 

No  Person  shall  be  a  Senator  who  shall  not  have 
attained  to  the  Age  of  thirty  Years,  and  been  nine  Years 
a  Citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  Inhabitant  of  that  State  for  which  he  shall 
be  chosen. 

The  Vice  President  of  the  United  States  shall  be 
President  of  the  Senate,  but  shall  have  no  Vote,  unless 
they  be  equally  divided. 

The  Senate  shall  chuse  their  other  Officers,  and  also  a 
President  pro  tempore,  in  the  Absence  of  the  Vice  Presi- 
dent, or  when  he  shall  exercise  the  Office  of  President  of 
the  United  States. 

The  Senate  shall  have  the  sole  Power  to  try  all  Im- 
peachments. When  sitting  for  that  Purpose,  they  shall 
be  on  Oath  or  Affirmation.  When  the  President  of  the 
United  States  is  tried,  the  Chief  Justice  shall  preside : 
And  no  Person  shall  be  convicted  without  the  Concur- 
rence of  two  thirds  of  the  Members  present. 

Judgment  in  Cases  of  Impeachment  shall  not  extend 
further  than  to  removal  from  Office,  and  disqualification 
to  hold  and  enjoy  any  Office  of  honor.  Trust  or  Profit 
under  the  United  States :  but  the  Party  convicted  shall 
nevertheless  be  liable  and  subject  to  Indictment,  Trial, 
Judgment  and  Punishment,  according  to  Law.^ 
Section.  4.  The  Times,  I'laces  and  Manner  of  hold- 
ing Elections  for  Senators  and  Representatives,  shall  be 
prescribed  in  each  State  by  the  Legislature  thereof;  but 
the  Congress  may  at  any  time  by  Law  make  or  alter 


1  In  re  Green,  134  U.  S.  377. 


684  APPENDIX. 

Appendix.  such  Regulations,  except  as  to  the  Places  of  chusing 

The  Constitution.  Senators.  ^ 

The  Congress  shall  assemble  at  least  once  in  every 
Year,  and  such  Meeting  shall  be  on  the  first  Monday  in 
December,  unless  they  shall  by  Law  appoint  a  different 
Day. 

Section.  5.  Each  House  shall  be  the  Judge  of  the 
Elections,  Returns  and  Qualifications  of  its  own  Mem- 
bers, and  a  Majority  of  each  shall  constitute  a  Quorum 
to  do  Business ;  but  a  smaller  Number  may  adjourn 
from  day  to  day,  and  may  be  authorized  to  compel  the 
Attendance  of  absent  Members,  in  such  Manner,  and 
under  such  Penalties  as  each  House  may  provide.^ 

Each  House  may  determine  the  Rules  of  its  Proceed- 
ings, punish  its  Members  for  disorderly  Behaviour, 
and,  with  the  Concurrence  of  two  thirds,  expel  a 
Member.^ 

Each  House  shall  keep  a  Journal  of  its  Proceedings, 
and  from  time  to  time  publish  the  same,  excepting  such 
Parts  as  may  in  their  Judgment  require  Secrecy ;  and 
the  Yeas  and  Nays  of  the  Members  of  either  House  on 
any  question  shall,  at  the  desire  of  one  fifth  of  those 
Present,  be  entered  on  the  Journal. 

Neither  House,  during  the  Session  of  Congress,  shall, 
without  the  Consent  of  the  other,  adjourn  for  more  than 
three  days,  nor  to  any  other  Place  than  that  in  which  the 
two  Houses  shall  be  sitting. 

Section.  6.  The  Senators  and  Representatives  shall 
receive  a  Compensation  for  their  Services,  to  be  ascer- 
tained by  Law,  and  paid  out  of  the  Treasury  of  the 
United  States.  They  shall  in  all  Cases,  except  Treason, 
Felony  and  Breach  of  the  Peace,  be  privileged  from 
Arrest  during  their  Attendance  at  the  Session  of  their 
respective  Houses,  and  in  going  to  and  returning  from  the 

1  United  States  v.  Reese,  92  U.  S.  218;  Ex  parte  Siebold,  100  U.  S. 
371 ;  Ex  ports  Yarbrough,  110  U.  S.  651;  In  re  Coy,  127  U.  S.  731 ;  In  re 
Neagle,  135  U.  S.  1. 

2  Li  re  Loney,  134  U.  S.  372. 

8  Anderson  v.  Dunn,  6  Wheat.  204;  Kilbourn  v.  Thompson,  103  U.  S, 
168. 


TUE    CONSTITUTION.  685 

same ;  and  for  any  Speech  or  Debate  in  either  House,  Appendix, 
they  shall  not  be  questioned  in  any  other  Place.^  '^''^  Constitution. 

No  Senator  or  Kepresentative  shall,  during  the  Time 
for  which  lie  was  elected,  be  ap})ointed  to  any  civil  Office 
under  the  Authority  of  the  United  States,  which  shall 
have  been  created,  or  the  Emoluments  whereof  shall 
have  been  encreased,  during  such  tinu»;  and  no  Person 
holding  any  Office  under  the  United  States,  shall  be  a 
Member  of  either  House  during  his  Continuance  in 
Office. 

Section.  7.  All  Bills  for  raising  Revenue  shall  origi- 
nate in  the  House  of  Representatives ;  but  the  Senate 
may  propose  or  concur  with  Amendments  as  on  other 
Bills. 

Every  Bill  which  shall  have  passed  the  House  of  Rep- 
resentatives and  the  Senate,  shall,  before  it  become  a 
Law,  be  presented  to  the  President  of  the  United  States ; 
If  he  approve  he  shall  sign  it,  but  if  not  he  shall  return 
it,  with  his  Objections  to  that  House  in  which  it  shall 
have  originated,  who  shall  enter  the  Objections  at  large 
on  their  Journal,  and  proceed  to  reconsider  it.  If  after 
such  Reconsideration  two  thirds  of  that  House  shall 
agree  to  pass  the  Bill,  it  shall  be  sent,  together  with  the 
Objections,  to  the  other  House,  by  which  it  shall  like- 
wise be  reconsidered,  and  if  approved  by  two  thirds  of 
that  House,  it  shall  become  a  Law.  But  in  all  such 
Cases  the  Votes  of  both  Houses  shall  be  determined  by 
yeas  and  Nays,  and  the  Names  of  the  Persons  voting  for 
and  against  the  Bill  shall  be  entered  on  the  Journal  of 
each  House  respectively.  If  any  Bill  shall  not  be  re- 
turned by  the  President  within  ten  Days  (Sundays 
excepted)  after  it  shall  have  been  presented  to  him,  the 
Same  shall  be  a  Law,  in  like  Manner  as  if  he  had  signed 
it,  unless  the  Congress  by  their  Adjournment  prevent  its 
Return,  in  which  Case  it  shall  not  be  a  Law.^ 

Every  Order,  Resolution,  or  Vote  to  which  the  Con- 

1  Coxe  V.  M'Clenachan,  3  Dall.  478;  United  States  v.  Cooper,  4  Dall. 
341. 

2  In  re  Neagle,  135  U.  S.  1. 


686  APPENDIX. 

Appendix.  cTirrence  of  the  Senate  and  House  of  Representatives 

The  Constitution,  y^r^y  j^g  necessary  (except  on  a  question  of  Adjournment) 
shall  be  presented  to  the  President  of  the  United  States  ; 
and  before  the  Same  shall  take  Effect,  shall  be  approved 
by  him,  or  being  disapproved  by  him,  shall  be  repassed 
by  two  thirds  of  the  Senate  and  House  of  Representa- 
tives, according  to  the  Rules  and  Limitations  prescribed 
in  the  Case  of  a  Bill. 

Section.  8.  The  Congress  shall  have  Power  To  lay 
and  collect  Taxes,  Duties,  Imposts  and  Excises,  to  pay 
the  Debts  and  provide  for  the  common  Defence  and  gen- 
eral Welfare  of  the  United  States ;  but  all  Duties,  Im- 
posts and  Excises  shall  be  uniform  throughout  the 
United  States  ;  ^ 

To  borrow  Money  on  the  credit  of  the  United  States ;  * 
To  regulate  Commerce  with  foreign  Nations,  and  among 
the  several  States,  and  with  the  Indian  Tribes  ;  ^ 

iHylton  V.  United  States,  3  Dall.  171;  McCulloch  v.  Maryland,.* 
Wheat.  310 ;  Loughborough  v.  Blake,  5  Wheat.  317 ;  Osborn  v.  Bank  of 
the  United  States,  9  Wheat.  738;  Weston  v.  City  Council  of  Charleston, 
2  Pet.  449;  Dobbins  v.  The  Commissioners  of  Erie  County,  16  Pet.  435; 
License  Cases,  5  How.  504 ;  Cooley  v.  Board  of  Wardens  of  Port  of 
Philadelphia,  12  How.  299;  Dodge  v.  Woolsey,  18  How.  331;  McGuire  v. 
The  Commonwealth,  3  AVall.  3.S7;  Van  Allen  v.  The  Assessors,  3  Wall. 
573;  Bradley  ??.  The  People,  4  Wall.  459;  Pervear  v.  Commonwealth, 
5  Wall.  475;  Pacific  Insurance  Co.  v.  Soule,  7  Wall.  433;  Woodruff  v. 
Parham,  8  Wall.  123;  Hinson  v.  Lott,  8  Wall.  148;  Veazie  Bank  v. 
Fenno,  8  Wall.  5-33;  The  Collector  v.  Day,  11  Wall.  113  ;  United  States 
V.  Singer,  15  Wall.  Ill ;  State  tax  on  Foreign-held  Bonds,  15  Wall.  300; 
United  States  t;.  Railroad  Company,  17  Wall.  322;  Railroad  Company 
V.  Peniston,  18  Wall.  5 ;  Scholey  v.  Rew,  23  Wall.  331 ;  Springer  v. 
United  States,  102  U.  S.  586;  Legal  Tender  Case,  110  U.  S.  421 ;  Edye  v. 
Robertson,  112  U.  S.  580;  Van  Brocklin  v.  Tennessee,  117  U.  S.  151; 
License  Tax  Cases,  5  Wall.  462. 

2  McCulloch  ?'.  Maryland,  4  Wheat.  316 ;  Osborn  v.  United  States  Bank, 
9  Wheat.  738;  Weston  v.  City  Council  of  Charleston,  2  Pet.  449;  Bank 
of  Commerce  v.  Xew  York  City,  2  Black,  ()20;  Bank  Tax  Case,  2  Wall. 
200 ;  The  Banks  v.  The  Mayor,  7  Wall.  16 ;  Bank  v.  Supervisors,  7  Wall. 
26;  Hepburn  v.  Griswold,  8  Wall.  603;  National  Bank  v.  Common- 
wealth, 9  Wall.  353;  Parker  v.  Davis,  12  Wall.  457:  Legal  Tender  Case, 
110  U.  S.  421. 

3  Gibbons  v.  Ogden,  9  Wheat.  1 ;  Brown  v.  Maryland,  12  Wheat.  419; 
Willson  V.  Black  Bird  Creek  Marsh  Company,  2  Pet.  245;  Cherokee 
Nation  w.  Georgia,  5  Pet.  1;  Worcester  v.  Georgia,  6  Pet.  515;  City  of 
New  York  v.  Miln,  11  Pet.  102 ;  United  States  v.  Coombs,  12  Pet.  72 ; 


THE    CONSTITUTION.  687 


Holmes  v.  Jennison,  14  Pet.  540;  License  Cases,  5  How.  504;  Passenger  Appendix. 
Cases,  7  How.  2.S3;  Nathan  v.  Louisiana,  H  How.  7;?;  Mager  ?).  Griina,  The  ('onstitution. 
8  How.  4SI0;  United  States  r.  Marijiiold,  !>  How.  oflO;  Cooley  ".  Board  of 
Wardens  of  the  Port  of  Pliiladelphia,  12  How.  2i)i) ;  The  Propeller  Genesee 
Chief  ?'.  Fitzhugh,  12  How.  443;  Pennslyvania  r.  Tlie  AVheeling  Bridge 
Co.,  1.'5  How.  518;  Veazie  v.  Moor,  14  How.  5()8;  Smith  v.  Maryland, 
18  How.  71 ;  Penn.sylvania  v.  Wheeling  and  Belmont  Bridge  Co.,  18 
How.  421 ;  Sinnot  i:  Davenport,  22  How.  227  ;  Foster  v.  Davenport,  22 
How.  244;  Conway  w.  Taylor's  Executor,  1  Black,  603;  Steamship  Co. 
r.  Joliife,  2  Wall.  450;  United  States  ?>.  Holliday,  3  Wall.  407;  (iilman 
V.  Philadelphia,  3  Wall.  713;  The  Passaic  Bridges,  3  Wall.  782;  License 
Tax  Cases,  5  Wall.  4G2;  Steamship  Company  r.  Port  Wardens,  fi  Wall. 
31 ;  Crandall  r.  Nevada,  0  Wall.  35 ;  White's  Bank  v.  Smith,  7  Wall. 
646;  Waring  v.  The  Mayor,  8  Wall.  110;  Paul  v.  Virginia,  8  Wall.  168; 
Thomson  v.  Pacific  Railroad,  9  Wall.  57it:  Downham  r.  Alexandria 
Council,  10  Wall.  173;  Ducat  r.  Chicago,  10  Wall.  410;  The  Clinton 
Bridge,  10  Wall.  454;  The  Daniel  Ball,  10  Wall.  557;  Liverpool  Insur- 
ance Company  r.  Massachusetts,  10  Wall.5()(;;  The  Montello,  11  Wall. 
411;  Ward  v.  Maryland,  12  Wall.  418  ;  Ej- parte,  McNiel,  13  Wall.  236; 
State  Freight  Tax,  15  Wall.  232 ;  State  Tax  on  Railway  Gross  Receipts, 
15  Wall.  284;  Osborne  v.  Mobile,  16  Wall.  470;  Railroad  Company  w. 
Fuller,  17  Wall.  560;  Bartemeyer  v.  Iowa,  18  Wall.  129;  The  Delaware 
Railroad  Tax,  18  Wall.  206  ;  Peete  r.  Morgan,  19  Wall.  581 ;  Railroad 
Company  i\  Richmond,  19  Wall.  584;  Minor  v.  Happersett,  21  Wall. 
1()2;  Railroad  Company  r.  Maryland,  21  Wall.  456;  The  Lottawanna, 
21  Wall.  558;  W^elton  v.  Missouri,  91  U.  S.  275;  Henderson  v.  The  ]^Iayor 
of  the  City  of  New  York,  92  U.  S.  259;  Cliy  Lung  v.  Freeman,  92  U.  S. 
275 ;  South  Carolina  v.  Georgia,  93  U.  S.  4 ;  Sherlock  v.  Ailing,  93  U.  S. 
99;  United  States  v.  Forty-three  Gallons  of  Whiskey,  93  U.  S.  188; 
Foster  v.  Master  and  Wardens  of  the  Port  of  New  Orleans,  94  U.  S. 
246;  Railroad  Co.  v.  Husen,  95  U.  S.  465  ;  Pensacola  Telegraph  Co.  v. 
Western  Union  Telegraph  Co.,  96  U.  S.  1 ;  Beer  Co.  v.  Massachusetts, 
97  U.  S.  25;  Cook  v.  Pennsylvania,  97  U.  S.  566;  Trade  Mark  Cases,  100 
U.  S.  82 ;  Packet  Co.  v.  St.  Louis,  100  U.  S.  423 ;  Tiernan  v.  Rinker,  102 
U.  S.  123;  Lord  v.  Goodall  &c.  Steamship  Co.,  102  U.  S.  541;  Wilson  v. 
McNamee,  102  U.  S.  572;  Mobile  County  v.  Kimball,  102  U.  S.  691; 
Webber  v.  Virginia,  103  U.  S.  344;  Western  Union  Telegraph  Co.  v. 
Texas,  105  U.  S.  460;  Newport  &c.  Bridge  Co.  v.  United  States,  105 
U.  S.  470 ;  People  r.  Compagnie  Gc'ncrale  Translantique,  107  U.  S.  59 ; 
Wiggins  Ferry  Co.  v.  East  St.  Louis,  107  U.  S.  365 ;  Escanaba  Co.  v. 
Chicago,  107  U.  S.  678;  Miller  v.  New  York,  109  U.  S.  385;  Moran  v. 
New  Orleans,.112  U.  S.  69;  Foster  v.  Kansas,  112  U.  S.  201;  Head  Money 
Cases,  112  U.  S.  580;  Cardwell  v.  American  Bridge  Co.,  113  U.S.  205; 
Cooper  Manufacturing  Co.  v.  Ferguson,  113  U.  S.  727 ;  Gloucester  Ferry 
Co.  V.  Pennsylvania,  114  U.  S.  li)6;  Brown  ?-.  Houston,  114  U.  S.  622; 
Starin  v.  New  York,  115  U.  S.  248;  Fisk  ?-.  Jefferson  Police  Jury.  116 
U.  S.  131 ;  Stone  r.  Illinois  Central  Railroad  Co.,  116  U.  S.  .347  ;  Stone  v. 
New  Orleans  and  Northeastern  Railroad,  11(5  U.  S.  352;  Walling  r. 
Michigan,  116  U.  S.  446;  Coe  r.  Errol,  116  U.  S.  517;  Pickard  v.  Pullman 
Southern  Car  Co..  117  U.  S.  34 :  Tennessee  ?'.  Pullman  Southern  Car  Co., 
117  U.  S.  51;  Spraigue  r.  Thompson,  118  U.  S.  90;  Morgan  Steamship 


688  APPENDIX. 

Appendix.  To  establish  an  uniform  Rule  of  Xaturalization,^  and 

Ihe  Constitution,  uniform  Laws  on  the  subject  of  Bankruptcies  throughout 
the  United  States  ;  ^ 

To  coin  Money,  regulate  the  Value  thereof,  and  of 
foreign  Coin,  and  fix  the  Standard  of  Weights  and 
Measures ;  ^ 

To  provide  for  the  Punishment  of  counterfeiting  the 
Securities  and  current  Coin  of  the  United  States ;  * 
To  establish  Post  Offices  and  post  Roads  ;  ^ 


Co.  V.  Louisiana,  118  U.  S.  455;  Wabash  &c.  Railway  Co.  v.  Illinois,  118 
U.  S.  557;  United  States  v.  Arjona,  120  U.  S.  479;  Robbins  r.  Shelby 
County  Taxing  District,  120  U.  S.  489;  Corson  v.  Maryland,  120  U.  S. 
502;  Fargo  r.  Michigan,  121  U.  S.  230;  Philadelphia  and  Southern  Steam- 
ship Co.  v.  Pennsylvania,  122  U.  S.  32(5:  Western  Union  Telegraph  Co. 
V.  Pendleton,  122  U.  S.  347;  Sands  v.  Manistee  River  Improvement  Co., 
123  U.  S.  288;  Mugler  v.  Kansas,  123  U.  S.  (J23;  Smith  r.  Alabama,  124 
U.  S.  4G5;  Willamette  Iron  Bridge  Co.  r.  Hatch,  125  U.  S.  1;  Pembina 
Consolidated  Mining  Co.  v.  Pennsylvania,  125  U.  S.  181 ;  Bowman  v. 
Chicago  &c.  Railway  Co.,  125  U.  S.  4t)5;  California  v.  Central  Pacific 
Railroad  Co.,  127  U.  S.  1;  Ratterraan  r.  Western  Union  Telegraph  Co., 

127  U.  S.  411;  Leloup  r.  Port  of  Mobile,  127  U.  S.  (i40;  Kidd  v.  Pearson, 

128  U.S.I;  Asher  r.  Texas,  128  U.  S.  129;  Stoutenburgh  r.  Hennick, 

129  U.  S.  141 ;  Kimmish  v.  Ball,  129  U.  S.  217  ;  Western  Union  Telegraph 
Co.  V.  Alabama,  132  U.  S.  472;  Louisville,  New  Orleans  &c.  Railway  Co. 
t>.  Mississippi,  133  U.  S.  587;  Leisy  v.  Hardin,  I'.iH  U.  S.  100;  Lyng  v. 
Michigan,  135  U.  S.  IGl ;  Cherokee  Nation  /'.  Southern  K-insas  Railway 
Co.,  135  U.  S.  (541;  McCall  r.  California,  130  U.  S.  104;  Norfolk  and 
Western  Railroad  Co.  v.  Pennsylvania,  13G  U.  S.  114;  Minnesota  r. 
Barber,  13(5  U.  S.  313;  Crowley  v.  Christensen,  137  U.  S.  Sfi;  Wheeler  v. 
Jackson,  137  U.  S.  245;  Brimmer  v.  Rebman,  138  U.  S.  78;  Munn  v. 
Illinois,  94  U.  S.  113;  Chicago,  Burlington  &c.  Railroad  v.  Iowa,  94 
U.  S.  155 ;  Peck  v.  North  Western  Railway,  i>4  U.  S.  1(54. 

1  Collet  V.  Collet,  2  Ball.  294 ;  Chirac  v.  Chirac,  2  Wheat.  259. 

2  Sturges  V.  Crowninshield,  4  Wheat.  122 ;  McMillan  v.  McNeill, 
4  Wheat.  209;  Houston  v.  Moore,  5  AVheat.  1;  Farmers'  and  Mechanics' 
Bank  of  Pennsylvania  r.  Smith,  6  Wheat.  131 ;  Ogden  »•.  Saunders,  12 
Wheat,  213;  Boyle  v.  Zacharie  and  Turner,  6  Pet.  .348;  Gassies  v. 
Ballon,  6  Pet.  761;  Beers  v.  Haughton,  9  Pet.  329;  Suydam  r.Broadnax, 
14  Pet.  G7;  Cook  v.  Moflat,  5  How.  295;  Dred  Scott  v.  Sandford,  19  How. 
393 ;  In  re  Neagle,  135  U.  S.  1. 

3  Briscoe  v.  The  Bank  of  the  Commonwealth  of  Kentucky,  11  Pet. 
257;  Fox  v.  Ohio,  5  How.  410;  United  States  r.  Marigold,  9irow.  5G0; 
Veazie  Bank  v.  Fenno,  8  Wall.  533;  Parker  v.  Davis,  12  Wall.  457; 
Legal  Tender  Case,  110  U.  S.  421. 

4  Fox  71.  Ohio,  5  How.  410;  United  States  ?•.  Marigold,  9  How.  5G0. 

5  McCulloch  V.  Maryland,  4  Wheat.  31(5;  Pennsylvania  r.  Wheeling 
and  Belmont  Bridge  Co.,  18  How.  421 ;  Ex  parte  Jackson,  90  U.  S.  727. 


THE    CONSTITUTION.  C89 

To  promote  the  I'rosi^ress  of  Science  and  useful  Arts,  by  Appendix, 
securing  for  limited  Times  to  Autlun-s  and  Inventors  the  ^^^  Constitution, 
exclusive  Right  to  their  respective  Writings  and  Discov- 
eries ; ' 

To  constitute  Tribunals  inferior  to  the  supreme  Court ; 

To  define  and  punish  Piracies  and  Felonies  committed 
on  the  high  Seas,  and  Offences  against  the  Law  of 
Nations ;  - 

To  declare  War,  grant  Letters  of  Marque  and  Reprisal, 
and  make  Rules  concerning  Captures  on  Land  and 
Water ; » 

To  raise  and  support  Armies,  but  no  Appropriation  of 
Money  to  that  Use  shall  be  for  a  longer  Term  than  two 
Years  ;  * 

To  provide  and  maintain  a  Navy  ;  ^ 

To  make  Rules  for  the  Government  and  Regulation  of 
the  land  and  naval  Forces ; 

To  provide  for  calling  forth  the  Militia  to  execute  the 
Laws  of  the  Union,  suppress  Insurrections  and  repel 
Invasions ;  ^ 

To  provide  for  organizing,  arming,  and  disciplining,  the 
Militia,  and  for  governing  such  Part  of  them  as  may  be 
employed  in  the  Service  of  the  United  States,  reserving 
to   the    States    respectively,   the   Appointment    of    the 


1  Grant  v.  Raymond,  6  Pet.  218 ;  Wheaton  v.  Peters,  8  Pet.  591 ;  Trade 
Mark  Cases,  100  U.  S.  82;  Burrow-Giles  Lithographic  Co.i\  Sarony,  111 
U.  S.  53 ;  Banks  v.  Manchester,  128  U.  S.  244 ;  Callaghan  v.  INIyers,  128 
U.  S.  617. 

2  United  States  ?•.  Palmer,  3  Wheat.  filO;  United  States  r.  Wiltberger, 
5  Wheat.  70;  United  States  v.  Smith,  5  Wheat.  153;  United  States  v. 
Pirates,  5  Wheat.  184;  United  States  v.  .\rjona,  120  U.  S.  479. 

8  Brown  v.  United  States,  8  Cranch,  110;  American  Insurance  Co.  r. 
Canter  (35()  bales  cotton),  1  Pet.  511 :  Mrs.  Alexander's  Cotton,  2  Wall. 
404;  Miller  v.  United  States,  11  Wall.  268;  Tyler  v.  Defrees,  11  Wall. 
331;  Stewart  r.  Kahn,  11  Wall.  493;  Hamilton  v.  Dillin,  21  Wall.  73; 
Lamar  v.  Browne,  92  U.  S.  187 ;  Prize  Cases,  2  Black,  635. 

■1  Crandall  r.  Nevada,  6  Wall.  35. 

5  United  States  v.  Bevans,  3  Wheat.  336;  Dynes  i-.  Hoover,  20 
How.  65. 

6  Houston  ?•.  Moore,  5  Wheat.  1 ;  Martin  v.  Mott,  12  Wheat.  19 ;  Luther 
V.  Borden,  7  How.  1;  Crandall  v.  Nevada,  G  Wall.  35;  Texas  v.  White, 
7  Wall.  700. 


C'JU  APPENDIX. 

Appendix.  Officers,    and    the    Authority   of    training    the    Militia 

The  Constitution,  according  to  the  discipline  prescribed  by  Congress;' 

To  exercise  exclusive  Legislation  iu  all  Cases  whatso- 
ever, over  such  District  (not  exceeding  ten  Miles  square) 
as  may,  by  Cession  of  particular  States,  and  the  Accept- 
ance of  Congress,  become  the  Seat  of  the  Government  of 
the  United  States,  and  to  exercise  like  Authority  over  all 
Places  purchased  by  the  Consent  of  the  Legislature  of 
the  State  in  which  the  Same  shall  be,  for  the  Erection  of 
Forts,  Magazines,  Arsenals,  dock-Yards,  and  other  need- 
ful Buildings  ;  —  And  ^ 

To  make  all  Laws  which  shall  be  necessary  and  proper 
for  carrying  into  Execution  the  foregoing  Powers,  and  all 
other  Powers  vested  by  this  Constitution  in  the  Govern- 
ment of  the  United  States,  or  in  any  Department  or 
Officer  thereof.^ 

Section.  9.  The  Migration  or  Importation  of  such 
Persons  as  any  of  the  States  now  existing  shall  tliink 
proper  to  admit,  shall  not  be  prohibited  by  the  Congress 
prior  to  the  Year  one  thousand  eight  hundred  and  eight, 


1  Houston  V.  Moore,  5  Wheat.  1;  Martin  v.  Mott,  12  Wheat.  19;  Luther 
V.  Borden,  7  How.  1. 

'-  Hepburn  v.  Ellzey,  2  Cranch,  444;  Houston  v.  Moore,  5  Wheat.  1 ; 
Loughborough  v.  Blake,  5  Wheat.  ;>17 ;  Cohens  i\  Virginia,  fJ  Wheat. 
2()4;  American  Insurance  Co.  t'.  Canter  (TiSfi  bales  cotton),  1  Pet.  511; 
Kendall,  Postmaster-General,  r.  United  States,  12  Pet.  524;  Cross  r. 
Harrison,  16  How.  ICA;  Dred  Scott  r.  Sandford,  19  How.  30;5;  United 
States  V.  Dewitt,  9  Wall.  41;  Dunphy  )'.  Kleinsmith,  11  Wall.  (ilO; 
Willard  v.  Presbury,  14  Wall.  (;7();  Phillips  r.  Payne,  92  U.  S.  i:iO: 
United  States  r.  Fox,  94  U.  S.  .">15;  National  Bank  v.  Yankton  County, 
101  U.  S.  129;  Fort  Leavenworth  Railroad  Co.  r.  Lowe,  114  U.  S.  525; 
Van  Brocklin  v.  Tennessee,  117  U.  S.  151. 

3  McCulloch  V.  Maryland,  4  Wheat.  316;  Wayman  v.  Southard, 
10  Wheat.  1 ;  Bank  of  United  States  v.  Hal.stead,  10  Wheat.  51 ;  AbleiuMU 
V.  Booth;  United  States  v.  Booth,  21  How.  .506;  Hepburn  r.  Griswold, 
8  Wall.  ()03;  National  Bank  v.  Commonwealth,  9  Wall.  ;55;5;  Thomson 
r.  Pacific  Railroad,  9  Wall.  579;  Parker  v.  Davis  (Legal  Tender  Cases) 
12  Wall.  457;  Railroad  Company  r.  Johnson,  13  Wall.  195;  Railroad 
Company  v.  Peniston,  18  Wall.  5 ;  United  Slates  ?'.  Harris,  106  U.  S.  629; 
Legal  Tender  Case,  110  U.  S.  421 ;  Ex  parte  Yarbrongh,  110  U.  S.  651 ; 
United  States  v.  Arjona,  120  U.  S.  479;  Stoutenburgh  v.  Heunick, 
129  U.  S.  141 ;  In  re  Neagle,  135  U.  S.  1. 


THE    CONSTITUTION.  601 

but  a  Tax  or  duty  may  bo  imposed  on  siich  Importation,  Appendix. 

not  exceeding  ten  dollars  for  each  Person.^  I'^i®  i'«nstitiiii<,n. 

The  Privilege  of  the  Writ  of  Habeas  Corpus  shall  not 
be  suspended,  unless  when  in  Cases  of  Rebellion  or  In- 
vasion the  public  Safety  may  recpnre  it.^ 

No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be  passed.' 

No  Capitation,  or  other  direct,  Tax  shall  be  laid,  unless 
in  Proportion  to  the  Census  or  Enunuu-ation  herein  be- 
fore directed  to  be  taken.* 

No  Tax  or  Duty  shall  be  laid  on  Articles  exported 
from  any  State.* 

No  Preference  shall  be  given  by  any  Regulation  of 
Commerce  or  Revenue  to  the  Ports  of  one  State  over 
those  of  another :  nor  shall  Vessels  bound  to,  or  from,  one 
State,  be  obliged  to  enter,  clear,  or  pay  Duties  in  another.' 

1  Dred  Scott  v.  Sandford,  19  How.  303 ;  People  r.  Compagnie  Gendrale 
Transatlantique,  107  U.  S.  59. 

2  United  States  v.  Hamilton,  3  Dall.  17 ;  Hepburn  v.  Ellzey,  2  Cranch, 
444;  Ex  parte  Bollman  and  Swartvvout,  4  Cranch,  7r);  Kx  parte 
Kearney,  7  Wheat.  38;  Ex  parte  Tobias  Watkins,  3  Pet.  192;  Ex  parte 
Milburn,  9  Pet.  704;  Holmes  r.  Jennison,  14  Pet.  540;  Ex  parte  Dorr,  3 
How.  10:5 ;  Luther  v.  Borden,  7  How.  1;  Ableman  v.  Booth;  United 
States  V.  Booth,  21  How.  50!!;  Ex  parte  Vallandisham,  1  "Wall.  243; 
Ex  parte  Millisan,  4  Wall.  2  ;  Ex  parte  McCardle,  7  Wall.  50() ;  Ex, 
parte  Yerger,  8  Wall.  85;  Tarble's  Case,  13  Wall.  397;  Ex  parte 
Lange,  18  Wall.  163;  Ex  parte  Parks,  93  U.  S.  18;  Ex  parte  Karsten- 
dick,  93  U.  S.  396;  Ex  parte  Virginia,  100  U.  S.  3.39. 

3  Fletcher  v.  Peck.  6  Cranch,  87  ;  Ogden  v.  Saunders,  12  Wheat.  213; 
Watsou  r.  Mercer,  8  Pet.  88;  Carpenter  r.  Penn.sylvania,  17  How.  456; 
Locke  ?'.  New  Orleans,  4  Wall.  172;  Cuniniings  v.  Missouri,  4  Wall. 
277;  Ex  parte  Garland,  4  Wall.  3.33;  Drehman  v.  Stitle,  8  Wall.  595; 
Klinger  v.  Missouri,  13  Wall.  257;  Pierce  ?.'.  Car.skadon,  16  Wall.  234; 
In  re  Neagle,  135  U.  S.  1 ;  Cook  r.  United  States,  138  U.  S.  157. 

<  Loughborough  v.  Blake,  5  Wheat.  317;  Licen.se  Tax  Cases,  5  WalL 
462;  Pacific  Insurance  Co.  v.  Soule,  7  Wall.  433;  Springer  v.  United 
States,  102  U.  S.  5S6;  Gibbons  v.  District  of  Columbia,  IK!  U.  S.  404. 

sCooley?'.  Board  of  Wardens  of  Port  of  Philadelphia,  12  How.  299; 
Pacific  Insurance  Co.  v.  Soule,  7  Wall.  433;  Pace  v.  Burgess,  92  U.  S. 
.372:  Tnrpin  v.  Burgess,  117  U.  S.  504. 

fiCooleyv.  Board  of  Wardens  of  the  Port  of  Philadelphia,  12  How. 
299;  State  of  Pennsylvania  v.  Wheeling  and  Belmont  Bridget  Company, 
18  How.  421 ;  Munn  v.  Illinois.  94  U.  S.  113;  Packet  Co.  v.  St.  Louis,  100 
U.S.  423;  Packet  Co.  v.  Catlettsburg,  105  U.  S.  559;  Gloucester  Ferry 
Co.  t'.  Pennsylvania,  114  U.  S.  196;  Walling  r.  Michigan,  116  U.  S.  44<;; 
Morgan's  Steamship  Co.  v.  Louisiana,  118  U.  S.  455;  Johnson  v.  Chicago 
and  Pacific  Elevator  Co.,  119  U.  S.  388. 


692  _  APPENDIX. 

Appendix.  No  Money  shall  be  drawn  from  the  Treasury,  but  in 

The  Constitution.  Consequence  of  Appropriations  made  by  Law ;  and  a 
regular  Statement  and  Account  of  the  Receipts  and  Ex- 
penditures of  all  public  Money  shall  be  published  from 
time  to  time.^ 

No  Title  of  Nobility  shall  be  granted  by  the  United 
States :  And  no  Person  holding  any  Office  or  Profit  or 
Trust  under  them,  shall,  without  the  Consent  of  the 
Congress,  accept  of  any  present,  Emolument,  Office,  or 
Title,  of  any  kind  whatever,  from  any  King,  Prince,  or 
foreign  State. ^ 

Section.  10.  No  State  shall  enter  into  any  Treaty, 
Alliance,  or  Confederation ;  grant  Letters  of  Marque 
and  Reprisal;  coin  Money;  emit  Bills  of  Credit;  make 
any  Thing  but  gold  and  silver  Coin  a  Tender  in  Pay- 
ment of  Debts ;  pass  any  Bill  of  Attainder,  ex  post 
facto  Law,  or  Law  impairing  the  Obligation  of  Contracts, 
or  grant  any  Title  of  Nobility.^ 

1  United  States  v.  Guthrie,  17  How.  284. 

2  Brashear  v.  Mason,  6  How.  92. 

3  Van  Home's  Lessee  t'.  Dorrance,  2  Dall.  304;  Commonwealth  v. 
Franklin,  4  Dall.  255;  Cakler  and  wife  v.  Bull  and  wife,  3  Dall.  38G; 
Cooper  V.  Telfair,  4  Dall.  14;  Fletcher  v.  Peck,  6  Cranch,  87;  New  Jer- 
sey V.  Wilson,  7  Cranch,  1(54;  Sturges  i\  Crowninshield,  4  Wheat.  122; 
McMillan  v.  McNeil,  4  Wheat.  209;  Dartmouth  College  v.  Woodward, 
4  Wheat.  518 ;  Houston  v.  Moore,  5  Wheat.  1 ;  Owings  v.  Speed,  5  Wheat. 
420;  Farmers  and  Mechanics'  Bank  v.  Smith,  fi  Wheat.  131;  Green  v. 
Biddle,  8  Wheat.  1 ;  Ogden  i'.  Saunders,  12  Wheat.  213 ;  Mason  v.  Haile, 
12  Wheat.  370;  Satterlee  v.  Matthewson,  2  Pet.  380;  Hart  v.  Lamphire, 
3  Pet.  280;  Craig  U.Missouri,  4  Pet.  410;  Providence  Bank  v.  Billings 
and  Pitman,  4  Pet.  514;  Byrne  v.  Missouri,  8  Pet.  40;  Watson  v.  Mer- 
cer, 8  Pet.  88 ;  Mumma  v.  Potomac  Company,  8  Pet.  281 ;  Beers  v.  Haugh- 
ton,9  Pet.  .329;  Briscoe  r.  The  Bank  of  the  Commonwealth  of  Kentucky, 
11  Pet.  257 ;  The  Proprietors  of  Charles  River  Bridge  r.  The  Proprietors 
of  Warren  Bridge,  11  Pet.  420;  Armstrong  v.  The  Treasurer  of  Athens 
County,  16  Pet.  281 ;  Bronson  v.  Kinzie,  1  How.  311 ;  Gwin  r.  Breedlove, 
2  How.  29 ;  McCracken  v.  Hay  ward,  2  How.  008 ;  Gordon  v.  Appeal  Tax 
Court,  3  How.  133 ;  Maryland  v.  Baltimore  and  Ohio  R.  R.  Co.,  3  How. 
534;  Neil,  Moore  &  Co.  v.  Ohio,  3  How.  720;  Cook  v.  Moffatt,  5  How. 
295 ;  Planters'  Bank  v.  Sharp,  6  How.  301 ;  West  River  Bridge  Company 
V.  Dix,  6  How.  507;  Crawford  v.  Branch  Bank  of  Mobile,  7  How.  279; 
Phalen  v.  Virginia,  8  How.  1(53;  Woodruff  r.  Trapnall,  10  How.  190; 
Paup  I'.  Drew,  10  How.  218;  Baltimore  and  Susquehanna  Railroad  Co. 
V.  Neshit,  10  How.  395;  Butler  v.  Pennsylvania,  10  How.  402;  East 
Hartford  v.  Hartford  Bridge  Co.,  10  How.  511;  Achisou  v.  Huddlesou, 


THE    CONSTITUTION.  GOo 

No  State  shall,  withovit  the  Consent  of  the  Congress,  Appendix, 
lay  any  Imposts  or  Duties  on  Imports  or  Exports,  ex-  '^^^^  Constitution, 
cept  what  may  be  absolutely  necessary  for  executing  its 
inspection  Laws :  and  the  net  Produce  of  all  Duties  and 

12  How.  29;5 ;  Darlington  r.  Tlie  Bank  of  Alabama,  13  How.  12  ;  Rich- 
mond &c.  Railroad  Co.  r.  The  Loui.sa  Railroad  Co.,  l.S  How.  71 ;  Trustees 
for  Vicennes  University  r.  Indiana,  14  How.  2(i8;  Curran  r.  Arkan.sas, 
15  How.  '.MA;  State  Hank  of  Ohio  r.  Knoop,  IIJ  How.  'M\);  Carpenter  v. 
Pennsylvania,  17  How.  4.")t>;  Dodj^e  *'.  Woolsey,  IX  How.  .3.51 ;  Mechanics' 
&c.  Bank  v.  Thonuvs,  IS  How.  'Mi ;  Beers  r.  Arkansas,  20  How.  527 ;  As- 
pinwall  ('.  Commissioners  of  County  of  Daviess,  22  How.  ."(U  ;  Rector  of 
Christ  Church,  Philadelphia,  v.  County  of  Philadeli>hia,  24  How.  ;300; 
Howard  r.  Bugbee,  24  How.  4()1 ;  Jefferson  Branch  Bank  v.  Skelley, 
1  Black,  4;i6;  Franklin  Branch  Bank  v.  Ohio,  1  Black,  474;  Trustees  of 
the  Wabash  and  Erie  Canal  Company  r.  Beers,  2  Black,  44S;  (Jilman  v. 
City  of  Sheboygan,  2  Black,  510;  Bridge  Proprietors  r.  Hoboken  Com- 
pany, 1  Wall.  IKi;  Hawtliorne  v.  Calef,  2  Wall.  10;  Florentine  r.  Bar- 
ton, 2  Wall.  210;  The  Binghamton  Bridge,:?  Wall.  51;  The  Turnpike 
Company  v.  The  State,  3  Wall.  210;  McGee  r.  Matliis,  4  Wall. -143; 
Locke  V.  New  Orleans,  4  Wall.  172;  Railroad  Company  r.  Hock,  4  Wall. 
177;  Cumraings  I'.  Missouri,  4  Wall.  277  ;  Ex  pa/'/c  Carland,  4  Wall.333; 
Von  Hoffman  i\  City  of  Quincy,  4  Wall.  535;  Williamson  r.  Suydam, 
6  Wall.  723;  Mulligan  r.  Corbins,  7  Wall.  4S7 ;  Furman  r.  Nichol,  8  Wall. 
44;  Home  of  the  Friendless  v.  Rouse,  8  Wall.  430 ;  The  Washington  Uni- 
versity r.  Rouse,  8  Wall.  439;  Butz  r.  City  of  iMuscatine,  8  Wall.  575; 
Drehman  r.  Stifle,  8  Wall.  595;  Hepburn  v.  Griswold,  8  Wall.  003;  Gut 
tj.  The  State,  9  Wall.  35;  Chicago  v.  Sheldon,  9  Wall.  50;  City  of  Ke- 
nosha ?'.  Lamson,  9  Wall.  477;  Railroad  Company  v.  McClure,  10  Wall. 
511;  Bethell  v.  Demaret,  10  Wall.  537;  Parker  v.  Davis  (The  Legal 
Tender  Cases),  12  Wall.  457;  Curtis  r.  Whitney,  13Wall.<iS;  Penn.syl- 
vania  College  Cases,  13  Wall.  190 ;  Wilmington  Railroad  /•.  Keid,  Sheriff, 

13  Wall.  264;  Salt  Company  v.  East  Saginaw,  13  Wall.  373;  White  i-. 
Hart,  13  Wall.  640;  Osborn  v.  Nicholson  et  uL,  13  Wall.  654;  Railroad 
Company  r.  Johnson,  15  Wall.  195;  Case  of  the  State  Tax  on  Foreign- 
held  Bonds,  15  Wall.  .300;  Tomlinson  *•.  Jessup,  15  W'all.  454;  Tomlinson 
V.  Branch,  15  Wall.  4(;0;  Miller  v.  The  State,  15  Wall.  478;  Holyoke 
Company  v.  Lyman,  15  Wall.  500;  Gunu  r.  Barry,  15  Wall.  610;  Davis 
V.  Gray,  16  Wall.  204;  Pierce  r.  Carskadon,  16  Wall.  2;54:  Humphrey  v. 
Pegues,  16  Wall.  244;  Walker  v.  Whitehead,  16  Wall.  314;  Sohn  v. 
Waterson,  17  Wall.  596;  Boyce  r.  Tabb,  18  Wall.  546;  Barings  r.  Dab- 
ney,  19  Wall.  1;  Head  v.  The  University,  19  Wall.  52t);  Pacific  Rail- 
road Co.  V.  Maguire,  20  Wall.  3*;;  Garrison  r.  City  of  New  York,  21 
Wall.  196;  Ochiltree  v.  Railroad  Company,  21  Wall.  249;  Erie  Rail- 
way ?'.  Pennsylvania,  21  Wall.  492;  Randall  r.  Kreiger,  23  Wall.  137; 
Wilmington  &c.  Railroad  v.  King,  Exr.,  91 U.  S.  3;  County  of  :Moultrie  v. 
Rockingham  Ten  Cent  Savings  Bank,  92  U.  S.  ('>31;  Home  Insurance 
Company  v.  City  Council  of  Augusta,  93  U.  S.  116;  West  Wisconsin 
Railroad  r.  Supervisors,  93  U.  S.  595;  Tennessee  v.  Sneed,  96  U.  S.  69; 
Williams  v.  Bruffy,  96  U.  S.  170;  Murray  v.  Charleston,  96  U.  S.  432; 


694  APPENDIX. 

Appendix.  Imposts,  laid  by  any  State  on  Imports  or  Exports,  shall 

Tiie  Constitution.  ]^q  f^j.  the  Use  of  the  Treasury  of  the  United  States ; 

and  all  such  Laws  shall  be  subject  to  the  Eevision  and 

Controul  of  the  Congress.^ 

Edwards  v.  Kearzey,  96  U.  S.  595 ;  Beer  Co.  v.  Massachusetts,  97  U.  S. 
25;  Keith  v.  Clark,  97  U.  S.  454;  Fertilizing  Co.  v.  Hyde  Park,  '.H  U.  S. 
659;  Railroad  Co.  v.  Georgia,  98  U.  S.  359;  University  v.  People,  99 
U.  S.  309 ;  Packet  Co.  ■;;.  St.  Louis,  100  U.  S.  423 ;  Vicksburg  v.  Tobin, 
100  U.  S.  430;  Guy  v.  Baltimore,  100  U.  S.  434;  Kirtland  v.  Hotchkiss, 
100  U.  S.  491;  Newton  v.  Commissioners,  100  U.  S.  548;  Railroad  Co.  v. 
Tennessee,  101  U.  S.  337;  Wright  v.  Nagle,  101  U.  S.  791;  Stone  v.  Mis- 
sissippi, 101  U.  S.  814;  Railroad  Co.  v.  Alabama,  101  U.  S.  832;  Louisi- 
ana V.  New  Orleans,  102  U.  S.  203;  Hartnian  v.  Greenhow,  102  U.  S. 
672;  Hall  v.  Wisconsin.  103  U.  S.  5;  Wolff  v.  New  Orleans,  103 
U.  S.  358;  Penniraan's  Case,  103  U.  S.  714;  Railroad  Co.  v.  Ham- 
ersley,  104  U.  S.  1;  Asj'lum  v.  New  Orleans,  105  U.  S.  362;  Guaranty 
Co.  v.  Board  of  Liquidation,  105  U.  S.  622;  Greenwood  v.  Freight  Co., 
105  U.  S.  13;  Kring  v.  Missouri,  107  U.  S.  221;  Autoni  v.  Greenhow, 
107  .U.  S.  769;  Ewell  v.  Daggs,  108  U.  S.  144;  Louisiana  v.  New- 
Orleans,  109  U.  S.  285;  Gilfillan  v.  Union  Canal  Co.,  10;)  U.  S.  401; 
Hoff  V.  County  of  Jasper,  110  U.  S.  53;  Nelson  v.  St.  JIartin's  Pari.sh, 
111  U.  S.  716;  Chicago  Life  Insurance  Co.  v.  Needles,  113  U.  S.  574; 
Virginia  Coupon  Cases,  114  U.  S.  269;  Amy  v.  Shelby  County,  114  U.  S. 
387;  Effinger  r.  Kenney,  115  U.  S.  566;  New  Orleans  Gas  Co.  r.  Louisi- 
ana Light  Co.,  115  U.  S.  650;  Louisville  Gas  Co.  v.  Citizens'  Gas  Co.,  115 
U.  S.  683;  New  Orleans  Waterworks  Co.  v.  Rivers,  115  U.  S.  674;  Fisk 
V.  Jefferson  Police  Jury,  116  U.  S.  131 ;  Stone  v.  Farmers'  Loan  and 
Trust  Co.,  116  U.  S.  307 ;  Stone  v.  Illinois  Central  Railroad  Co.,  116  U.  S. 
347;  Stone  v.  New  Orleans  &  Northeastern  Railroad,  116  U.  S.  352; 
Royall  V.  Virginia,  116  U.  S.  572;  Hagood  v.  Southern,  117  U.  S.  52; 
St.  Tammany  Waterworks  v.  New  Orleans  Water  Works,  120  U.  S.  64; 
United  States  v.  Arjona,  120  U.  S.  479;  Church  v.  Kelsey,  121  U.  S.  282; 
Lehigh  Water  Co.  v.  Easton,  121  U.  S.  388;  Seibert  v.  Lewis,  122  U.  S. 
284;  New  Orleans  Waterworks  Co.  v.  Louisiana  Sugar  Refining  Co.,  125 
U.  S.  18;  Bank  of  Redemption  v.  Boston,  125  U.  S.  60;  Maynard  v.  Hill, 
125  U.  S.  im-  Jaehne  v.  New  York,  128  U.  S.  189;  Denny  v.  Bennett, 
128  U.  S.  489;  Williamson  v.  New  Jersey,  130  U.  S.  189;  Hunt  v.  Hunt, 
131  U.  S.  appendix  clxv;  Freeland  r.  Williams,  1.31  U.  S.  405 ;  Campbell 
V.  Wade,  132  U.  S.  34;  Pennsylvania  Railroad  Co.  v.  Miller,  132  U.  S.  75; 
•  Crenshaw  v.  United  States,  l.'M  U.  S.  99;  Medley,  Petitioner,  134  U.  S. 

160:  MeGahey  v.  Virginia,  135  U.  S.  662;  Bryan  v.  Virginia,  135  U.  S. 
662;  Cuthbert  v.  Virginia,  135  U.  S.  698;  In  re  Brown,  1.35  U.  S.  701; 
Hucless  V.  Childrey,  1.35  U.  S.  709;  Vashon  v.  Greenhow,  135  U.  S.  713; 
Holden  v.  Minnesota,  137  U.  S.  483;  Sioux  City  Street  Railway  Co.  v. 
Sioux  City,  138  U.  S.  98;  Wheeling  and  Belmont  Bridge  Co.  v.  Wheeling 
Bridge  Co.,  138  U.  S.  287. 

1  McCulloch  V.  Maryland,  4  Wheat.  316;  Green  v.  Biddle,  8  Wheat.  1 ; 
Gibbons  v.  Ogden,  9  Wheat.  1;  Brown  v.  Maryland,  12  Wheat.  419; 
Mager  v.  Grima,  8  How.  490;  Cooley  w.  Board  of  Wardens  of  Port  of 


THE    CONSTITUTION.  695 

No  State  shall,  without  the  Consent  of  Congress,  lay  Aijpcndix. 
any  Duty  of  Tonnage,  keep  Troops,  or  Ships  of  War  in  '^^^  Coustitution. 
time  of  Peace,  enter  into  any  Agreement  or  Compact  with 
another  State,  or  with  a  foreign  Power,  or  engage  in  War, 
unless  actually  invaded,  or  in  such  imminent  Danger  as 
will  not  admit  of  delay.' 

ARTICLE.  II. 

Section.  1.  The  executive  Power  shall  be  vested  in 
a  President  of  the  United  States  of  America.  He  shall 
hold  his  Office  during  the  Term  of  four  Years,  and,  to- 
gether with  the  Vice  President,  chosen  for  the  same 
Term,  be  elected,  as  follows 

Each  State  shall  appoint,  in  such  Manner  as  the 
Legislature  thereof  may  direct,  a  Number  of  Electors, 
equal  to  the  whole  Number  of  Senators  and  Representa- 
tives to  which  the  State  may  be  entitled  in  the  Congress  : 
but  no  Senator  or  Representative,  or  Person  holding  an 
Office  of  Trust  or  Profit  under  the  United  States,  shall 
be  appointed  an  Elector.^ 

Pbiladelpbia  et  al.,  12  How.  299;  Almy  v.  California,  24  How.  169; 
License  Tax  Cases,  5  Wall.  402;  Pervear  v.  Commonwealth,  5  Wall. 
475 ;  Ste.amship  Co.  i\  Portwardens,  6  Wall.  31 ;  Crandall  r.  Nevada, 
6  Wall.  35;  Waring  v.  The  Mayor,  8  Wall.  110;  Woodruff  r.  Parham,  8 
Wall.  123;  Hinsou  f.  Lott,  8  Wall.  148;  State  Tonnage  Tax  Cases,  12 
Wall.  204;  State  Tax  on  Railway  Gross  Receipts,  15  Wall.  284;  Inman 
Steamship  Company  v.  Tinker,  ii4  U.  S.  238;  Cook  v.  Pennsylvania,  97 
U.  S.  56(5;  Packet  Co.  v.  Keokuk,  95  U.  S.  80;  Guy  v.  Baltimore,  100 
U.  S.  434;  People  v.  Compaguie  Ge'nerale  Transatlantique,  107  U.  S.  59; 
Wiggins  Ferry  Co.  r.  East  St.  Louis,  107  U.  S.  365;  Brown  r.  Houston, 
114  U.  S.  022;  Walling  v.  Michigan,  110  U.  S.440;  Coe  r.Errol,  110  U.  S. 
517 ;  Turpin  v.  Burgess,  117  U.  S.  504 ;  Collet  v.  Collet,  2  Dall.  2m. 

1  Green  r.  Biddle,  8  Wheat.  1 ;  Poole  v.  The  Lessee  of  Fleeger,  11  Pet. 
185 ;  Virginia  r.  West  Virginia,  11  Wall.  39;  Cooley  v.  Board  of  Wardens 
of  Port  of  Philadelphia,  12  How.  299;  Peete  v.  Morgan,  19  Wall.  581; 
Cannon  v.  New  Orleans,  20  Wall.  577 ;  Inman  Steamship  Company  v. 
Tinker,  St4  U.  S.  238;  Transportation  Co.  v.  Wheeling,  i>9  U.  S.  273; 
Packet  Co.  i'.  St.  Louis,  100  U.  S.  423;  Guy  v.  Baltimore,  100  U.  S.  434; 
Packet  Co.  r  Keokuk,  95  U.  S.  SO;  Vicksburg  v.  Tobin,  100  U.  S.  4,30; 
Packet  Co.  v.  Catlettsburg,  105  U.  S.  .5.59 ;  Transportation  Co.  v.  Par- 
kersburg,  107  U.  S.  091 ;  Morgan  v.  Louisiana,  118  U.  S.  455 ;  Huse  r. 
Glover,  119  U.  S.  543;  Ouachita  Packet  Co.  v.  Aiken,  121  U.  S.  444; 
Indiana  v.  Kentucky,  130  U.  S.  479. 

2Chisholm  v.  Georgia,  2  Dall.  419;  Leitensdorfer  r.  Webb,  20  How. 
176;  Ex  parte  Siebold,  100  U.  S.  371;  In  re  Green,  134  U.  S.  377. 


696  APPENDIX. 

Appendix.  The  electors  shall  meet  in  their  respective  States,  and 

The  Constitution,  yq^q  \yy  ballot  for  two  Persons,  of  whom  one  at  least 
shall  not  be  an  Inhabitant  of  the  same  State  with  them- 
selves. And  they  shall  make  a  List  of  all  the  Persons 
voted  for,  and  of  the  Number  of  Votes  for  each ;  which 
List  they  shall  sign  and  certify,  and  transmit  sealed  to 
the  Seat  of  the  Government  of  the  United  States,  directed 
to  the  President  of  the  Senate.  The  President  of  the 
Senate  shall,  in  the  Presence  of  the  Senate  and  House  of 
Representatives,  open  all  the  Certificates,  and  the  Votes 
shall  then  be  counted.  The  Person  having  the  greatest 
Number  of  Votes  shall  be  the  President,  if  such  Number 
be  a  Majority  of  the  whole  Number  of  Electors  appointed; 
and  if  there  be  more  than  one  who  have  such  Majority, 
and  have  an  equal  Number  of  Votes,  then  the  House  of 
Representatives  shall  immediately  chuse  by  Ballot  one 
of  them  for  President ;  and  if  no  Person  have  a  Majority, 
then  from  the  five  highest  on  the  List  the  said  House 
shall  in  like  Manner  chuse  the  President.  But  in  chusing 
the  President,  the  Votes  shall  be  taken  by  States,  the 
Representation  from  each  State  having  one  Vote ;  A 
quorum  for  this  Purpose  shall  consist  of  a  Member  or 
Members  from  two-thirds  of  the  States,  and  a  Majority 
of  all  the  States  shall  be  necessary  to  a  Choice.  In  every 
Case,  after  the  Choice  of  the  President,  the  Person  hav- 
ing the  greatest  Number  of  Votes  of  the  Electors  shall 
be  the  Vice  President.  But  if  there  should  remain  two 
or  more  who  have  equal  Votes,  the  Senate  shall  chuse 
from  them  by  Ballot  the  Vice  President.' 

The  Congress  may  determine  the  Time  of  chusing  the 
Electors,  and  the  Day  on  which  they  shall  give  their 
Votes;  which  Day  shall  be  the  same  throughout  tlie 
United  States. 

No  Person  except  a  natural  born  Citizen,  or  a  Citizen 
of  the  United  States,  at  the  time  of  the  Adoption  of 
this  Constitution,  shall  be  eligible  to  the  Office  of  Presi- 
dent ;  neither  shall  any  Person  be  eligible  to  that  Office 
who  shall  not  have  attained  to  the  Age  of  thirty  five 

1  This  clause  has  been  superseded  by  the  Twelfth  Amendment. 


THE    CONSTITUTION. 


60' 


Years,  and  been  fourteen  Years  a  Resident  within  the  Appendix. 
United  States.^  '^^"^  Coustitution. 

In  Case  of  the  Removal  of  the  President  from  Office, 
or  of  his  Death,  Resignation,  or  Inability  to  discharge 
the  Powers  and  Duties  of  the  said  Office,  the  same  shall 
devolve  on  the  yice  President,  and  the  Congress  may  by 
Law  provide  for  the  Case  of  Removal,  Death,  Resigna- 
tion or  Inability,  both  of  the  President  and  Vice  Presi- 
dent, declaring  what  Officer  shall  then  act  as  President, 
and  such  Officer  shall  act  accordingly,  until  the  Disa- 
bility be  removed,  or  a  President  shall  be  elected. 

The  President  shall,  at  stated  Times,  receive  for  his 
Services,  a  Compensation,  which  shall  neither  be  en- 
creased  nor  diminished  during  the  Period  for  which  he 
shall  have  been  elected,  and  he  shall  not  receive  within 
that  Period  any  other  Emolument  from  the  United 
States,  or  any  of  them. 

Before  he  enter  on  the  Execution  of  his  Office,  he  shall 
take  the  following  Oath  or  Affirmation :  —  "I  do 
solemnly  swear  (or  affirm)  that  I  will  faithfully  exe- 
cute the  Office  of  President  of  the  United  States,  and 
will  to  the  best  of  my  Ability,  preserve,  protect  and 
defend  the  Constitution  of  the  United  States." 
Section.  2.  The  President  shall  be  Commander  in  Chief 
of  the  Army  and  Navy  of  the  United  States,  and 
of  the  Militia  of  the  several  States,  when  called  into  the 
actual  Service  of  the  United  States ;  he  may  require  the 
Opinion,  in  writing,  of  the  principal  Officer  in  each  of 
the  executive  Departments,  upon  any  Subject  relating  to 
the  Duties  of  their  respective  Offices,  and  he  shall  have 
Power  to  grant  Reprieves  and  Pardons  for  Offences  against 
the  United  States,  except  in  Cases  of  Impeachment.^ 

1  English  r.  The  Trustees  of  the  Sailors'  Snui:  Harbor,  3  Pet.  99. 

2  Houston  r.  Moore,  5  Wheat.  1 ;  United  States  r.  Wilson,  7  Pet.  150; 
Ex  parte  Wells,  18  How.  307;  Ex  parte  Garland,  4  Wall,  o.m;  Arm- 
strong's Foundry,  (!  Wall.  7t)6 ;  Texas  v.  White,  7  Wall.  700 :  The  Grape- 
shot,  9  Wall.  129 ;  United  States  r.  Padelford,  9  Wall.  531 ;  United  States 
r.  Klein,  13  Wall.  128;  Armstrong  r.  United  States,  13  Wall.  154:  Par- 
goud  r.  United  States,  13  Wall.  15(3;  Hamilton  v.  Dillin.  21  Wall.  73; 
Mechanics  and  Traders'  Bank  v.  Union  Bank,  22  Wall.  27(!;  Lamar  u. 
Browne,  92  U.  S.  187 ;  Wallach  v.  Van  Riswick,  92  U.  S.  202 ;  In  re 
Neagle,  135  U.  S.  1. 


698  APPENDIX. 

Appendix.  He  shall  have  Power,  by  and  with  the  Advice  and  Con- 

The  Constitution,  ggj^^  Qf  h^q  Senate,  to  make  Treaties,  provided  two-thirds 
of  the  Senators  present  concur ;  and  he  shall  nominate, 
and  by  and  with  the  Advice  and  Consent  of  the  Senate, 
shall  appoint  Ambassadors,  other  public  Ministers  and 
Consuls,  Judges  of  the  supreme  Court,  and  all  other 
Officers  of  the  United  States,  whose  Appointments  are 
not  herein  otherwise  provided  for,  and  which  shall  be 
established  by  Law :  but  the  Congress  may  by  Law  vest 
the  Appointment  of  such  inferior  Officers,  as  they  think 
proper,  in  the  President  alone,  in  the  Courts  of  Law,  or 
in  the  Heads  of  Departments.' 

The  President  shall  have  Power  to  fill  up  all  Vacancies 
that  may  happen  during  the  Recess  of  the  Senate,  by 
granting  Commissions  which  shall  expire  at  the  End  of 
their  next  Session.'' 

Section.  3.  He  shall  from  time  to  time  give  to  the 
Congress  Information  of  the  State  of  the  Union,  and 
recommend  to  their  Consideration  such  Measures  as  he 
shall  judge  necessary  and  expedient ;  he  may,  on  extraor- 
dinary Occasions,  convene  both  Houses,  or  either  of  them, 
and  in  Case  of  Disagreement  between  them,  with  Respect 
to  the  Time  of  Adjournment,  he  may  adjourn  them  to 
such  Time  as  he  shall  think  proper ;  he  shall  receive  Am- 
bassadors and  other  public  Ministers  ;  he  shall  take  Care 
that  the  Laws  be  faithfully  executed,  and  shall  Commis- 
sion all  the  Officers  of  the  United  States.^ 
Section.  4.     The  President,  Vice  President  and  all  civil 

1  Ware  v.  Hylton,  3  Dall.  199;  Marbury  v.  Madison,  1  Crancli,  137; 
United  States  v.  Kirkpatrick,  9  Wheat.  720;  American  Insurance  Com- 
pany V.  Canter  (;35()  bales  cotton) ,  1  Pet.  511 ;  Foster  and  Ehim  t\  Neilson, 
2  Pet.  253 ;  Cherokee  Nation  v.  State  of  Georgia,  5  Pet.  1 ;  Patterson  v. 
Winn,  5  Pet.  233 ;  Worcester  v.  State  of  Georgia,  6  Pet.  515 ;  City  of  New 
Orleans  v.  De  Armas,  9  Pet.  224;  United  States  v.L.e  Baron,  19  How. 
73;  Holdeu  v.  Joy,  17  Wall.  211;  United  States  v.  Germaine,  99  U.  S. 
508 ;  Ex  parte  Siebold,  100  U.  S.  371 ;  United  States  v.  Arjona,  120  U.  S. 
479;  In  re  Neagle,  135  U.  S.  1. 

2  The  United  States  v.  Kirkpatrick,  9  Wheat.  720 ;  In  re  Neagle,  135 
U.  S.  1. 

3  Marbury  v.  Madison,  1  Cranch,  137 ;  Kendall  v.  United  States,  12 
Pet.  524;  Luther  v.  Borden,  7  How.  1;  Mississippi  v.  Johnson,  President, 
4  Wall.  475;  Stewart  v.  Kahn,  11  Wall.  493;  In  re  Neagle,  135  U.  S.  1. 


THE    CONSTITUTION.  G99 

Officers   of  the  United  States,  shall  be  removed  from  Appendix. 
Office  on  Impeachment  for,  and  Conviction  of.  Treason,  '^"^^'^  Constitution. 
Bribery,  or  other  high  Crimes  and  Misdemeanors. 

AKTICLE.   III. 

Section.  1.  The  judicial  Power  of  the  United  States, 
shall  be  vested  in  one  supreme  Court,  and  in  such 
inferior  Courts  as  the  Congi-ess  may  from  time  to  time 
ordain  and  establish.  The  Judges,  both  of  the  siipreme 
and  inferior  Courts,  shall  liold  their  Offices  during  good 
Behaviour,  and  shall,  at  stated  Times,  receive  for  their 
Services,  a  Compensation,  wliich  shall  not  be  diminished 
during  their  Continuance  in  Office.' 

Section.  2.  The  Judicial  Power  shall  extend  to  all 
Cases,  in  Law  and  Equity,  arising  under  this  Constitution, 
the  Laws  of  the  United  States,  and  Treaties  made,  or 
which  shall  be  made,  under  their  Authority;  —  to  all 
Cases  affecting  Ambassadors,  other  public  IVIinisters  and 
Consuls ;  —  to  all  Cases  of  admiralty  and  maritime  Juris- 
diction ;  —  to  Controversies  to  which  the  United  States 
shall  be  a  party ;  —  to  Controversies  between  two  or  more 
States  ;  —  between  a  State  and  Citizens  of  another  State ; 
—  between  Citizens  of  different  States,  —  between  Citi- 
zens of  the  same  State  claiming  Lands  under  Grants  of 
different  States,  and  between  a  State,  or  the  Citizens 
thereof,  and  foreign  States,  Citizens  or  Subjects.^ 

1  Chisholm  v.  Georgia,  2  Dall.  419;  Stnart  v.  Laird,  1  Cranch,  299; 
United  States  r.  Peters,  5  Craiich,  115;  Duroussean  v.  United  States,  6 
Cranch,  308;  Martin  v.  Hunter's  Lessee,  1  Wheat.  .'504;  Cohens  ?'.  Vir- 
ginia, 6  Wheat.  261;  Osborn  v.  United  States  Bank,  9  Wheat.  7.38; 
Benner  v.  Porter,  9  How.  2.3.5 ;  United  States  v.  Ritchie,  17  How.  525 ; 
Murray's  Lessee  v.  Hoboken  Land  and  Improvement  Co.,  IX  Ilow.  272; 
Ex  parte  Vallandigham,  1  Wall.  243;  The  Grapeshot,  9  Wall.  129;  Me- 
chanics' and  Traders'  Bank  v.  Union  Bank  of  Louisiana,  22  Wall.  27(5; 
United  States  v.  Union  Pacific  Railroad,  98  U.  S.  5tJ9;  Ames  v.  Kansas, 
111  U.  S.  449 ;  In  re  Loney,  134  U.  S.  372. 

2  United  States  v.  Ravara,  2  Dall.  297;  Georgia  ?'.  Brailsford,  2  Dall. 
402;  Haybnrn's  Case  (note),  2  Dall.  410;  Oswald  /'.  New  York,  2  Dall. 
415;  Chisholm  v.  Georgia,  2  Dall.  419;  Glass  v.  Sloop  Betsey,  3  Dall.  6; 
Bingham  v.  Cabott,  3  Dall.  19;  Penhallow  i\  Doane's  Administrator,  3 
Dall.  54;  United  States  v.  La  Vengeance,  3  Dall.  297 ;  Hollingsworth  v. 


700  APPENDIX. 

Appendix.  In  all  Cases  affecting  Ambassadors,  other  public  Min- 

The  Constitution,  jg^ers  and  Consuls,  and  those  in  which  a  State  shall  be 
Party,  the  supreme  Court  shall  have  original  Jurisdiction. 
In  all  the  other  Cases  before  mentioned,  the  supreme 
Court  shall  have  appellate  Jurisdiction,  both  as  to  Law- 
Virginia,  3  Dall.  378;  Mossman  v.  Higginson,  4  Dall.  12;  Abercrombie 
V.  Diipuis,  1  Cranch,  343;  Marbury  v.  Madison,  1  Craucli,  137;  Hepburn 
V.  Ellzey,  2  Cranch,  444;  United  States  v.  Moore,  3  Cranch,  159;  Straw- 
bridge  V.  Curtiss,  3  Cranch,  2(J7;  Ex  parte  Bollman,  4  Cranch,  75; 
Rose  V.  Himely,  4  Cranch,  241 ;  Chappedelaine  v.  Dechenaux,  4  Cranch, 
306;  United  States  ■?;.  Schooner  Betsey,  4  Cranch,  443;  Hope  Insurance 
Company  v.  Boardmau,  5  Cranch,  57 ;  Bank  of  United  States  ?;.  13eveaux, 
5  Cranch,  til;  Hodgson  v.  Bovverbank,  5  Cranch,  .303;  Owiugs  v.  Nor- 
wood's Lessee,  5  Cranch,  344 ;  Durousseau  v.  The  United  States,  (I  Crauch, 
307;  United  States  v.  Hudson  and  Goodwin,  7  Cranch,  32;  Town  of 
Pawlet  V.  Clark,  9  Cranch,  292;  Martin  v.  Hunter's  Lessee,  1  Wheat. 
304;  United  States  v.  Coolidge,  1  Wheat.  415;  Colson  v.  Lewis,  2  Wheat. 
377 ;  Gelston  v.  Hoyt,  3  Wheat.  246 ;  United  States  v.  Bevaus,  3  Wheat,  33(5; 
Houston  u.  Moore,  5  Wheat.  1;  Cohens  v.  Virginia,  t!  Wheat.  2M;  Ex 
parte  Kearney,  7  Wheat.  .38 ;  Matthews  v.  Zane,  7  Wheat.  1(J4;  Osborn 
V.  United  States  Bank,  9  Wheat.  738;  United  States  v.  Ortega,  11  Wheat. 
467;  American  Insurance  Company  v.  Canter  (.356  bales  of  cotton),  1 
Pet.511 ;  Jackson  v.  Tweutyman,  2  Pet.  136;  Cherokee  Nation  v.  Georgia, 
5  Pet.  1;  New  Jersey  v.  New  York,  5  Pet.  283;  Worcester  v.  Georgia,  6 
Pet.  515 ;  Davis  v.  Packard,  6  Pet.  41 ;  United  States  v.  Arredondo,  6  Pet. 
691;  Davis  v.  Packard,  7  Pet.  276;  Breedlove  v.  Nicolet,  7  Pet.  413; 
Brown  v.  Keene,  8  Pet.  112 ;  Davis  v.  Packard,  8  Pet.  312 ;  City  of  New 
Orleans  v.  De  Armas,  9  Pet.  224;  Rhode  Island  v.  Massachusetts,  12  Pet. 
657;  Bank  of  Augusta  r.  Earle,  13  Pet.  519;  Commercial  and  Railroad 
Bank  of  Vicksburg  v.  Slocomb,  14  Pet.  CO;  Suydam  v.  Broadnax,  14  Pet. 
67;  Prigg  v.  Pennsylvania,  1(>  Pet.  539;  Louisville,  Cincinnati  and 
Charleston  Railroad  Co.  ?>.  Letson,  2  How.  497 ;  Cary  v.  Curtis,  3  How. 
236 ;  Waring  i'.  Clark,  5  How.  441 ;  New  Jersey  Steam  Navigation  Co. 
V.  Merchants'  Bank,  6  How.  344;  Luther  v.  Borden,  7  How.  1;  Sheldon 
V.  Sill,  8  How.  441;  The  Propeller  Genesee  Chief  v.  Fitzhugh,  12  How. 
443;  Fretz  v.  Bull,  12  How.  466;  Neves  v.  Scott,  13  How.  268;  Pennsyl- 
vania V.  The  Wheeling  &c.  Bridge  Company,  13  How.  518;  Marshall  v. 
Baltimore  and  Ohio  Railroad  Co.,  16  How.  314;  United  States  v.  Guthrie, 
17  How.  284;  Smith  v.  Maryland,  18  How.  71 ;  Jones  v.  League,  18  How. 
76;  Murray's  Lessee  v.  Hoboken  Land  and  Improvement  Company,  18 
How.  272;  Dodge  v.  Woolsey,  18  How.  331;  Dred  Scott  v.  Sandford,  19 
How.  393;  Hyde  v.  Stone,  20  How.  170;  Jackson  v.  Steamboat  Magnolia, 
20  How.  29r);  Irvine  v.  Marshall,  20  How.  558;  Fenn  v.  Holme,  21  How. 
481;  Morewood  ?'.  Enequist,  23  How.  491;  Kentucky  v.  Dennison,  Gov- 
ernor, 24  How.  66;  Ohio  and  Mississippi  Railroad  Company  ii.  Wheeler, 
1  Black,  286;  The  Steamer  Saint  Lawrence,  1  Black,  522 ;  The  Propeller 
Commerce,  1  Black,  574;  Ex  parte  Vallandigham,  1  Wall.  243;  Ex  parte 
Milligan,  4  Wall.  2;  The  Moses  Taylor,  4  Wall.  411 ;  Mississippi  v.  John- 
son, President,  4  Wall.  475;  The  Hine  v.  Trevor,  4  Wall.  555;  Philadel- 


THE    CONSTITUTION".  701 

and  Fact,  with  sucli  Exceptions,  and  under  such  Regula-  Appendix, 
tions  as  the  Congress  shall  make.'  '^''"»  Constitution. 

The  Trial  of  all  Crimes,  except  in  Cases  of  Impeach- 
ment, shall  be  by  Jury ;  and  such  Trial  shall  be  held  in 
the  State  where  the  said  Crimes  shall  have  been  com- 
mitted ;  but  when  not  committed  within  any  State,  the 


phia  V.  The  Collector,  5  Wall.  720 ;  Georgia  v.  Stanton,  6  Wall.  50;  Payne 
V.  Hook,  7  Wall.  42.5;  The  Alicia,  7  Wall.  .571 ;  Cowles  ?'.  Mercer  County, 
7  Wall.  118;  The  Belfast,  7  Wall.  ()24;  Ex  parte  Yerger,  8  Wall.  85; 
Insurance  Company  r.  Dunham,  11  Wall.  1;  Virginia  v.  West  Virginia, 

11  Wall.  :«t;  Coal  Co.  v.  Blatcliford,  11  Wall.  172;  Railway  Co.  v.  Whit- 
ton's  Adni.,  13  Wall.  270;  Tarble's  Case,  13  Wall.  3i)7;  Blyew  i-.  United 
States,  13  Wall.  581;  Davis  v.  Gray,  l(j  Wall.  203;  Steamboat  Co.  v. 
Chase,  Hi  Wall.  522 ;  Case  of  the  Sewing  Machine  Companies,  18  Wall. 
553;  Insurance  Co.  v.  Dunn,  19  Wall.  214;  The  Mohler,  21  Wall.  230; 
Insurance  Company  v.  Morse,  20  Wall.  445;  Vannevar  v.  Bryant,  21 
Wall.  41;  The  Lottawanna,  21  Wall.  .558;  Gaines  v.  Fuentes,  92  U.S. 
10 ;  Muller  v.  Dows,  94  U.  S.  444 ;  Doyle  v.  Continental  Insurance  Com- 
pany, 94  U.  S.  535 ;  United  States  v.  Hall,  98  U.  S.  343 ;  United  States  v. 
Union  Pacific  Railroad  Co.,  98  U.  S.  509;  Tennessee  v.  Davis,  100  U.  S. 
257;  Expurte  Boyd,  105  U.  S.  647;  New  Hamp.shire  v.  Louisiana,  108 
U.  S.  76;  New  York  v.  Louisiana,  108  U.  S.  7();  Johnson  v.  Chicago  &c. 
Elevator  Co.,  119  U.  S.  388 ;  Barron  v.  Burnside,  121  U.  S.  180 ;  De  Saus- 
sure  ?'.  Gaillard,  127  U.  S.21();  Wisconsin  v.  Pelican  Insurance  Co.,  127 
U.  S.  265;  Hans  v.  Louisiana,  1.34  U.  S.  1;  Johnson  v.  Risk,  137  U.  S. 
300;  Cook  County  v.  Calumet  &c.  Canal  &  Dock  Co.,  138  U.  S. 
635. 

1  Chisholm  v.  Georgia,  2  Dall.  419;  Wiscart  v.  Dauchy,  3  Dall.  321 ; 
Marbury  ?'.  Madison,  1  Cranch,  1.37;  Ex  parte  Bollman,  4  Cranch,75; 
Durousseau  ?>.  United  States,  6  Cranch,  .307 ;  Martin  v.  Hunter's  Lessee,  1 
Wheat.  304;  Cohens  v.  Virginia,  6  Wheat.  264;  Ex  parte  Kearney,  7 
Wheat.  38 ;  Wayman  t\  Southard,  10  Wheat.  1 ;  Bank  of  the  United  States 
V.  Halstead,  10  Wheat.  51 ;  United  States  v.  Ortega,  11  Wheat.  467  ;  The 
Cherokee  Nation  v.  Georgia,  5  Pet.  1;  Ex  parte  Crane,  5  Pet.  189;  New 
Jersey  v.  New  York,  5  Pet.  283;  Davis  v.  Packard,  7  PeL  27(j;  Ex  parte 
Sibbald  v.  United  States,  12  Pet.  488 ;  Rhode  Island  v.  Massachusetts, 

12  Pet.  657;  Pennsylvania  v.  The  Wheeling  &c.  Bridge  Company,  13 
How.  518;  In  re  Kaine,  14  How.  103;  Ableman  r\  Booth;  United  States 
V.  Booth,  21  How.  506;  Ex  parte  Vallandingham,  1  Wall.  243;  Kentucky 
V.  Dennison,  24  How.  6(5;  Freeborn  v.  Smith,  2  Wall.  160;  Ex  parte 
McCardle,  6  Wall.  318;  Ex  parte  McCardle,  7  Wall.50(5;  Texas  v.  White, 
7  Wall.  700;  Ex  parte  Yerger,  8  Wall.  85;  The  Lucy,  8  Wall.  307;  The 
Justices  V.  Murray,  0  Wall.  274 ;  Pennsylvania  v.  Quicksilver  Company, 
10  Wall.  .553;  Virginia  r.  West  Virginia,  11  Wall.  39;  Murdock  c.  City 
of  Memphis,  20  Wall.  590 ;  Tennessee  v.  Davis,  100  U.  S.  257  ;  The  Francis 
Wright,  105  U.  S.  381;  Bors  v.  Preston,  111  U.  S.  252;  Ames  v.  Kansas, 
111  U.  S.  449 ;  Wisconsin  v.  Pelican  Insurance  Co.,  127  U.  S.  265 ;  /?i  re 
Baiz,  135  U.  S.  403. 


702  APPENDIX. 

Appendix.  Trial  shall  be  at  such  Place  or  Places  as  the  Congress 

The  Constitution,  j^^y  by  Law  have  directed.^ 

Section.  3.  Treason  against  the  United  States,  shall 
consist  only  in  levying  War  against  them,  or  in  adhering 
to  their  Enemies,  giving  them  Aid  and  Comfort.  No  Per- 
son shall  be  convicted  of  Treason  unless  on  the  Testimony 
of  two  Witnesses  to  the  same  overt  Act,  or  on  Confession 
in  open  Court.^ 

Tlie  Congress  shall  have  Power  to  declare  the  Punish- 
ment of  Treason,  but  no  Attainder  of  Treason  shall  work 
Corruption  of  Blood,  or  Forfeiture  except  during  the  Life 
of  the  Person  attainted.^ 

AKTICLE.  IV. 

Section.  1.  Full  Faith  and  Credit  shall  be  given  in 
each  State  to  the  public  Acts,  Records,  and  judicial  Pro- 
ceedings of  every  other  State.  And  the  Congress  may 
by  general  Laws  prescribe  the  Manner  in  which  such 
Acts,  Records  and  Proceedings  shall  be  proved,  and  the 
Effect  thereof.* 


^  United  States  v.  Dawson,  15  How.  467 ;  United  States  v.  Jackalow, 
1  Black,  484;  Ex  jmrte  Milligan,  4  Wall.  2;  Callan  v.  Wilson,  127  U.  S. 
540 ;  Nashville,  Chattanooga  &c.  Railway  Co.  v.  Alabama,  128  U.  S.  96 ; 
Eilenbecker  v.  District  Court  of  Plymouth  County,  134  U.  S.  32 ;  Jones 
V.  United  States,  137  U.  S.  202;  Cook  v.  United  States,  1.38  U.  S.  157. 

2  United  States  v.  The  Insurgents,  2  Dall.  335;  United  States  v. 
Vigol,  2  Dall.  34();  United  States  v.  Mitchell,  2  Dall.  348;  Ex  purte  Boll- 
man  and  Swartwout,  4  Cranch,  75;  United  States  v.  Aaron  Burr,  4 
Cranch,  470. 

3  Bigelow  V.  Forest,  9  Wall.  339 ;  Day  v.  Micou,  18  Wall.  15G ;  Ex 
parte  Lange,  18  Wall.  163;  Wallach  v.  Van  Riswick,  92  U.  S.  202. 

4  Armstrong  v.  Carson's  Executors,  2  Dall.  302 ;  Mills  v.  Duryee,  7 
Cranch,  481;  Hampton  v.  McConnel,  3  Wheat.  2.34;  Mayhew  v.  Thatcher, 
6  Wheat.  129;  Darby's  Lessee  u.  Mayer,  10  Wheat.  465;  United  States 
V.  Aniedy,  11  Wheat.  392;  Caldwell  v.  Carrington's  Heirs,  9  Pet.  86; 
M'Elmoyle  v.  Cohen,  13  Pet.  312;  Bank  of  Augusta  v.  Earle,  13  Pet. 
519;  Bank  of  the  State  of  Alabama  v.  Dalton,  9  How.  522;  D'Arcy  v. 
Ketchum,  11  How.  165 ;  Kentucky  v.  Dennison,  Governor,  &c.,  24  How. 
66;  Christmas  v.  Russell,  5  Wall.  2StO;  Green  v.  Van  Buskirk,  7  Wall. 
139;  Paul  v.  Virginia,  8  Wall.  168;  Cheever  v.  Wilson,  9  Wall.  108; 
Board  of  Public  Works  v.  Columbia  College,  17  Wall.  521;  Thompson 
V.  Whitman,  18  Wall.  457;  Bonaparte  v.  Tax  Court,  104  U.  S.  592;  Rob- 
ertson V.  Pickrell,  108  U.  S.  608;  Hanley  v.  Donoghue,  116  U.  S.  1; 


THE    CONSTITUTION.  703 

SECTTO>r.  2.     The   Citizens  of   each   State   shall  be  en-  Appendix, 
titled  to  all  Privileges  and  Imnmnities  of  Citizens  in  the  '^''^  Constitution, 
several  States.^ 

A  person  charged  in  any  State  with  Treason,  Felony, 
or  other  Crime,  who  shall  flee  from  Justice,  and  be  found 
in  another  State,  shall  on  Demand  of  the  executive 
Authority  of  the  State  from  which  he  fled,  be  delivered 
up,  to  be  removed  to  the  State  having  Jurisdiction  of 
the  Crime.^ 

No  Person  held  to  Service  or  Labour  in  one  State, 
under  the  Laws  thereof,  escaping  into  another,  shall,  in 
Consequence  of  any  Law  or  Regulation  therein,  be  dis- 
charged from  such  Service  or  Labour,  but  shall  be 
delivered  up  on  Claim  of  the  Party  to  whom  such  Ser- 
vice or  Labour  may  be  due.^ 

Section.  3.  New  States  may  be  admitted  by  the  Con- 
gress into  this  Union  ;  but  no  new  State  shall  be  formed 
or  erected  within  the  Jurisdiction  of  any  other  State ; 


Renaud  v.  Abbott,  116  U.  S.  277 ;  Chicago  ifc  Alton  Railroad  v.  Wiggins 
Ferry  Co.,  119  U.  S  615;  Wisconsin  v.  Pelican  Insurance  Co.,  127  U.  S. 
265;  Cole  v.  Cunningham,  133  U.  S.  107;  Simmons  v.  Saul,  138  U.  S.  439. 

1  Bank  of  United  States  v.  Deveaux,  5  Cranch,  61 ;  Gassies  v.  Ballon, 
6  Pet.  761;  Rhode  Island  v.  Massachusetts,  12  Pet.  fw7  ;  Tlie  Bank  of 
Augusta  V.  Earle,  13  Pet.  519;  Moore  v.  The  People  of  the  State  of  Illi- 
nois, 14  How.  13;  Dodge  v.  Woolsey,  18  How.  331 ;  Conner  v.  Elliott,  18 
How.  591;  Dred  Scott  v.  Sandford.  19  How.  393;  Crandall  v.  Nevada,  6 
Wall.  35;  Woodruff  i'.  Parhani,  8  Wall.  123;  Paul  v.  Virginia,  8  Wall. 
168;  Downham  v.  Alexandria  Council,  10  Wall.  173;  Ducat  v.  Chicago, 
10  Wall.  410;  Liverpool  Insurance  Company  v.  Massachusetts.  10  Wall. 
566 ;  Ward  v.  Maryland,  12  Wall.  418;  Slanghterhonse  Cases,  16  Wall.  36; 
Bradwell  v.  The  State,  16  Wall.  130;  Minor  v.  Happersett,  21  Wall.  1()2; 
Chemung  Bank  v.  Lowery,  93  U.  S.  72;  McCready  v.  Virginia,  94  U.  S. 
391;  United  States  v.  Harris,  106  U.  S.  629;  Brown  v.  Houston,  114  U.  S. 
622;  Pembina  Consolidated  Mining  Co.  ;;.  Pennsylvania,  125  U.  S.  181; 
Kimmish  v.  Ball,  129  U.  S.  217;  Cole  v.  Cunningham,  133  U.  S.  107; 
Norfolk  and  Western  Railroad  Co.  v.  Pennsylvania,  136  U.  S.  114 ;  Min- 
nesota V.  Barber,  136  U.  S.  313. 

2  Holmes  11.  Jennison,  14  Pet.  540;  Kentucky  v.  Dennison,  Governor, 
24  How.  66;  Taylor  v.  Taintor,  16  Wall.  3()6;  Robb  v.  Connolly,  111 
U.  S.  624. 

8  Prigg  V.  Pennsylvania,  16  Pet.  539 ;  Jones  v.  Van  Zandt,  5  How.  215 ; 
Strader  r.  Graham,  10  How.  82 ;  Moore  v.  The  People  of  the  State  of  Illi- 
nois, 14  How.  13;  Dred  Scott  v.  Sandford,  19  How.  393;  Ableman  v.  Booth ; 
United  States  v.  Booth,  21  How.  506. 


704  APPENDIX. 

Appendix.  nor  any  State  be  formed  by  the  Junction  of  two  or  more 

The  Constitution.  States,  or  Parts  of  States,  without  the  Consent  of  the 
Legislatures  of  the  States  concerned  as  well  as  of  the 
Congress.^ 

The  Congress  shall  have  Power  to  dispose  of  and  make 
all  needful  Rules  and  Regulations  respecting  the  Terri- 
tory or  other  Property  belonging  to  the  United  States ; 
and  nothing  in  this  Constitution  shall  be  so  construed  as 
to  Prejudice  any  Claims  of  the  United  States,  or  of  any 
particular  State.^ 

Sectiox.  4.  The  United  States  shall  guarantee  to 
every  State  in  this  Union  a  Republican  Form  of  Govern- 
ment, and  shall  protect  each  of  them  against  Invasion; 
and  on  Application  of  the  Legislature,  or  of  the  Execu- 
tive (when  the  Legislature  cannot  be  convened)  against 
domestic  Violence.* 

ARTICLE.   V. 

The  Congress,  whenever  two  thirds  of  both  Houses 
shall  deem  it  necessary,  shall  propose  Amendments  to 
this  Constitution,  or,  on  the  Application  of  the  Legisla- 
tures of  two  thirds  of  the  several  States,  shall  call  a 
Convention  for  proposing  Amendments,  which,  in  either 
Case,  shall  be  valid  to  all  Intents  and  Purposes,  as  Part 
of  this  Constitution,  when  ratified  by  the  Legislatures  of 
three  fourths  of  the  several  States,  or  by  Conventions  in 
three  fourths  thereof,  as  the  one  or  the  other  Mode  of 
Ratification  may  be  proposed  by  the  Congress ;  Provided 

1  American  Insurance  Company  v.  Canter  (356 Bales  of  Cotton),  1  Pet. 
511 ;  Pollard's  Lessee  v.  Hagan,  3  How.  212;  Cross  v.  Harrison,  16  How. 
164. 

2  McCulloch  V.  Maryland,  4  Wheat.  316;  American  Insurance  Com- 
pany V.  Canter,  1  Pet.  511 ;  United  States  v.  Gratiot,  14  Pet.  526 ;  United 
States  V.  Rogers,  4  How.  567;  Cross  v.  Harrison,  16  How.  164;  Mackey 
V.  Coxe,  18  How.  100;  Dred  Scott  v.  Sandford,  19  How.  3[»3;  Freeborn  v. 
Smith,  2  Wall.  160;  Gibson  v.  Chouteau,  13  Wall.  92;  Clinton  v.  Engle- 
brecht,  13  Wall.  iM;  Beall  v.  New  Mexico,  16  Wall.  535;  United  States 
w.  Waddell,  112  U.  S.  76;  Van  Brocklin  v.  Tennessee,  117  U.  S.  151 ;  Wis- 
consin Central  Railroad  Co.  v.  Price  County,  133  U.  S.  496;  Mormon 
Church  V.  United  States,  136  U.  S.  1. 

8  Luther  v.  Borden,  7  How.  1;  Texas  v.  White,  7  Wall.  700;  Minor  v. 
Happersett,  21  Wall.  162. 


THE    CONSTITUTION.  705 

that  no  Amendment  which  may  be  made  prior  to  the  Appendix. 

Year  One  thousand  eight  hundred  and  eight  shall  in  any  '^^•^  Constitution. 

Manner  affect  the  first  and  fourth  Clauses  in  the  Ninth 

Section  of  the  first  Article ;  and  that  no  State,  without 

its  Consent,  shall  be  deprived  of  its  equal  Suffrage  in  the 

Senate. 

ARTICLE.   VI. 

All  Debts  contracted  and  Engagements  entered  into, 
before  the  Adoi)tion  of  this  Constitution,  shall  be  as 
valid  against  the  United  States  under  this  Constitution, 
as  under  the  Confederation.^ 

This  Constitution,  and  the  Laws  of  the  United  States 
which  shall  be  made  in  Pursuance  thereof;  and  all 
Treaties  made,  or  which  shall  be  made,  under  the  Author- 
ity of  the  United  States,  shall  be  the  supreme  Law  of 
the  Land  ;  and  the  Judges  in  every  State  shall  be  bound 
thereby,  any  Thing  in  the  Constitution  or  Laws  of  any 
State  to  the  Contrary  notwithstanding.- 

The  Senators  and  Representatives  before  mentioned, 
and  the  Members  of  the  several  State  Legislatures,  and 
all  executive  and  judicial  Officers,  both  of  the  United 
States  and  of  the  several  States,  shall  be  bound  by  Oath 
or  Affirmation,  to  support  this  Constitution;  but  no 
religious  Test  shall  ever  be  required  as  a  Qualification  to 
any  Office  or  public  Trust  under  the  United  States.' 

1  Dred  Scott  v.  Sandford,  19  How.  393. 

2  Hayburn's  Case,  2  Dall.  409;  Ware  v.  Hylton,  3  Dall.  199;  Calder 
and  Wife  v.  Bull  and  Wife,  3  Dall.  38(5;  Marbury  v.  Madison,  1  Cranch, 
137;  Chirac  v.  Chirac,  2  Wheat.  259;  McCulloch  v.  Maryland,  4  Wheat 
316;  Society  v.  New  Haven,  8  Wheat.  464;  Gibbons  v.  Oj;den,  9  Wheat 
1;  Foster  and  Elam  v.  Neilsou,  2  Pet.  253 ;  Buckner  v.  Finley,  2  Pet.  58() 
Worcester  t\  Georgia,  6  Pet.  515 ;  Kennett  v.  Chambers,  14  How.  38 
Dodge  V.  Woolsey,  18  How.  331;  Dred  Scott  v.  Sandford,  19  How.  393 
New  York  v.  Dibble,  21  How.  366 ;  Ableman  v.  Booth ;  United  States  v 

■  Booth,  21  How.  506 ;  Sinnot  v.  Davenport,  22  How.  227 ;  Foster  v.  Daven 
port,  22  How.  244 ;  Society  for  Savings  v.  Coite,  6  Wall.  594 ;  Provident 
Institution  v.  Massachusetts,  6  Wall.  611;  Haver  v.  Yaker,  9  Wall.  32 
The  Cherokee  Tobacco.  11  Wall.  616;  Hauenstein  v.  Lynham,  100  U.  S, 
483;  Edye  v.  Robertson,  112  U.  S.  580;  Van  Brocklin  v.  Tennessee,  IIT 
U.  S.  151 ;  United  States  v.  Rauscher,  119  U.  S.  407 ;  Whitney  v.  Robertson,. 
124  U.  S.  190;  The  Chinese  Exclusion  Case,  130  U.  S.  5S1 ;  In  re  Neagle,. 
135  U.  S.  1. 

8  Dodge  V.  Woolsey,  18  How.  331;  Ex  parte  Garland,  4  Wall.  333;  In 
re  Neagle,  135  U.  S.  1. 


706 


APPENDIX. 


Appendix. 

The  Constitution. 


AETICLE.  VII. 

The  Katification  of  the  Conventions  of  nine  States,  shall 
be  sufficient  for  the  Establishment  of  this  Constitution 
between  the  States  so  ratifying  the  Same. 


The  word  "  the  ",  being  in- 
terlined between  the  seventh 
and  eighth  Lines  of  the  first 
Page,  The  Word  "  Thirty  " 
being  partly  written  on  an  Era- 
zure  in  the  fifteenth  Line  of 
the  first  Page,  The  Words  "  is 
tried"  being  interlined  between 
the  thirty  second  and  thirty 
third  Lines  of  the  first  Page 
and  the  Word  "  the  "  being  in- 
terlined between  the  forty  third 
and  forty  fourth  Lines  of  the 
second  Page. 

[Note  BV  Printer. — The  in- 
terlined and  rewritten  words, 
mentioned  in  the  above  ex- 
planation, are  in  this  edition, 
printed  in  their  proper  places 
in  the  text.] 


Done  in  Convention  by  the  Unani- 
mous Consent  of  the  States  pres- 
ent the  Seventeenth  Day  of 
September  in  the  Year  of  our 
Lord  one  thousand  seven  hun- 
dred and  Eighty  seven  and  of 
the  Independance  of  the  United 
States  of  America  the  Twelfth 
In  Witness  whereof  We  have 
hereunto  subscribed  our  Names, 


G« :   WASHINGTON—  Presidt. 

and  deputy  from  Virginia 
Attest  William  Jackson  Secretary 


New  Hampshire 

Massachusetts 

Connecticut 
New  York   .    . 

New  Jersey 


Pennsylvania       ■< 


Jo  FIN  Langdon        > 
Nicholas  Oilman  > 
Nathaniel  Gorham 
RuFus  King 
Wm  :  Saml.  Johnson 
Roger  Sherman 
Alexander  Hamilton 

WiL :  Livingston 
David  Brearley. 
Wm.  Paterson. 
JoNA :  Dayton 
B  Franklin 
Thomas  Mifflin 
RoBT.  Morris 
Geo.  Clymer 
Thos.  Fitz  Simons 
Jared  Ingersoll 
James  Wil.son 
Gouv  Morris 


THE    CONSTITUTION. 


707 


Delaware 

Maryland 
Virginia 
North  Carolina 

South  Carolina 
Georgia 


f Geo:  Read 
Gunning  Bedford  jun 
John  Dickinson 

RiCHAKD    liASSETT 

,  Jaco :  Broom 

{James  McHenry 
Dan  of  St  Thos.  Jenifer 
Danl  Carroll 
(  John  Blair — 
(.  James  Madison  Jr. 
\Vm  :  Blount 

RiCHD.    DOBBS    SpAIGHT. 

Hu  Williamson 
J.  Rutledge 

Charles  Cotesworth  Pinckney 
Charles  Pinckney 
^  Pierce  Butler. 
William  Few 
Abr  Baldwin 


Appendix. 

The  Constitution. 


ARTICLES 

IN 
ADDITION  TO,   AND  AMENDMENT  OF 

CONSTITUTION  OF  THE  UNITED  STATES 
OF  AMERICA, 

proposed  by  congress  and  ratified  by  the  legisla- 
tures  OF   THE   SEVERAL   STATES,    PURSUANT   TO   THE 
FIFTH   ARTICLE    OF    THE    CONSTITUTION. 


[Article  I.]' 

Congress  sliall  make  no  law  respecting  an  establish- 
ment of  religion,  or  prohibiting  the  free  exercise  thereof ; 

1  Terrett  v.  Taylor,  9  Cranch,  43 ;  Yidal  v.  Girard,  2  How.  127 ;  Ex  parte 
Garland,  4  Wall.  333 ;  United  States  v.  Cruikshank,  02  U.  S.  542 ;  Rey- 
nolds V.  United  States,  98  U.  S.  145;  Presser  v.  Illinois,  116  U.  S.  252; 
Spies  t'.  Illinois,  123  U.  S.  131;  Davis  v.  Beason,  133  U.  S.  333;  Eilen- 
becker  v.  District  Court  of  Plymouth  County,  134  U.  S.  31 ;  In  re  Neagle, 
135  U.  S.  1. 


708  APPENDIX. 

Appendix.  or  abridging  the  freedom  of  speech,  or  of  the  press ;  or 

The  Constitution,  the  right  of  the  people  peaceably  to  assemble,  and  to 
petition  the  Government  for  a  redress  of  grievances. 

[Article  II.] 
A  well  regulated  Militia,  being  necessary  to  the  secu- 
rity of  a  free  State,  the  right  of  the  people  to  keep  and 
bear  Arms,  shall  not  be  infringed.^ 

[Article  III.] 
Ko  Soldier  shall,  in  time  of  peace  be  quartered  in  any 
house  without  the  consent  of  the  Owner,  nor  in  time  of 
war,  but  in  a  manner  to  be  prescribed  by  law.^ 

[Article  IV.] 
The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated,  and  no  Warrants  shall 
issue,  but  upon  probable  cause,  supported  by  Oath  or 
affirmation,  and  particularly  describing  the  place  to  be 
searched,  and  the  persons  or  things  to  be  seized.^ 

[Article  V.] 
No  person  shall  be  held  to  answer  for  a  capital,  or 
otherwise  infamous  crime,  unless  on  a  presentment  or 
indictment  of  a  Grand  Jury,  except  in  cases  arising  in 
the  land  or  naval  forces,  or  in  the  Militia,  when  in  actual 
service  in  time  of  War  or  public  danger;  nor  shall  any 
person  be  subject  for  the  same  offence  to  be  twice  put  in 
jeopardy  of  life  or  limb ;  nor  shall  be  compelled  in  any- 
Criminal  Case  to  be  a  witness  against  himself,  nor  be 

1  Presser  v.  Illinois,  11(3  U.  S.  252;  Spies  v.  Illinois,  123  U.  S.  131; 
Eilenbecker  v.  District  Court  of  Plymouth  County,  131  U.  S.  31. 

2  Spies  V.  Illinois,  123  U.  S.  131 ;  Eilenbecker  v.  District  Court  of 
Plymouth  County,  134  U.  S.  31. 

3  Smith  V.  Maryland,  18  How.  71 ;  Murray's  Lessee  v.  Hoboken  Land 
and  Improvement  Company,  18  How.  272 ;  E.r,  parte  Milligan,  4  Wall.  2; 
Ex  parte  Jackson,  96  U.  S.  727;  Boyd  r.  United  States,  IIG  U.  S.  010; 
Spies  V.  Illinois,  123  U.  S.  131 ;  Eilenbecker  v.  District  Court  of  Plymouth 
County,  134  U.  S.  31. 


TUE    CONSTITUTION.  701) 

deprived  of  life,  liberty,  or  property,  without  due  process  Appendix. 

of  law ;  nor  shall  private  property  be  taken  for  public  '^'^^  tou»iitutiou. 

use,  without  just  compensation.^ 

[Article  VI.] 
In  all  criminal  prosecutions,  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial,  by  an  impartial 
jury  of  the  State  and  district  wherein  the  crime  shall 
have  been  committed,  which  district  shall  have  been 
previously  ascertained  by  law,  and  to  be  informed  of  the 
nature  and  cause  of  the  accusation  ;  to  be  confronted 
with  the  witnesses  against  him ;  to  have  compulsory 
process  for  obtaining  Witnesses  in  his  favor,  and  to  have 
the  Assistance  of  Counsel  for  his  defence,^ 

1  Houston  V.  Moore,  5  Wheat.  1 ;  United  States  v.  Perez,  9  Wheat. 
579;  Barron  v.  The  City  of  Baltimore,  7  Pet.  243;  Fox  v.  Ohio,  5  How. 
410;  West  River  Bridge  Company  r'.  Dix,  G  How.  507;  Mitchell  ?».  Har- 
mony, 13  How.  115 ;  Moore  v.  The  People  of  the  State  of  Illinois,  14  How. 
13;  Murray's  Lessee  v.  Hoboken  Land  and  Improvement  Company,  18 
How.  272 ;  Dynes  v.  Hoover,  20  How.  05 ;  Withers  v.  Buckley,  20  How. 
84;  Oilman  v.  The  City  of  Sheboygan,  2  Black,  510;  Ex  parte  Milligan, 
4  Wall.  2;  Twitchell  v.  The  Commonwealth,  7  W^ill.  321;  Hepburn  v. 
Griswold,  8  Wall.  603;  Miller  v.  United  States,  11  Wall.  2(J8;  Legal 
Tender  Cases,  12  Wall.  457 ;  Pumpelly  v.  Green  Bay  Co.,  13  Wall.  166; 
Osborn  v.  Nicholson,  13  Wall.  654 ;  Ex  parte  Lange,  18  Wall.  163;  Minor 
V.  Happersett,  21  Wall.  162;  The  Mohler,  21  Wall.  230;  Secombe  v.  Mil- 
waukee  &  St.  Paul  Railroad  Co..  23  Wall.  108;  Kohl  v.  United  States,  91 
U.  S.  367 ;  Davidson  v.  New  Orleans,  {Hi  U.  S.  97 ;  Sinking  Fund  Cases, 
99  U.  S.  700 ;  Transportation  Co.  v.  Chicago,  99  U.  S.  635 ;  Kelly  v.  Pitts- 
burgh, 104  U.  S.  78;  United  States  v.  Lee,  106  U.  S.  196;  Ex  parte  Wall, 
107  U.  S.  265;  United  States  v.  Jones,  109  U.  S.  513;  Ex  parte  V/ihon, 
114  U.  S.  417;  Boyd  v.  United  States,  116  U.  S.  616;  Mackin  v.  United 
States,  117  U.  S.  348;  Ex  parte  Bain,  121  U.  S.  1;  Parkin.son  v.  United 
States,  121  U.  S.  281 ;  Spies  v.  Illinois,  123  U.  S.  131 ;  Callau  v.  Wilson, 
127  U.  S.  540;  United  States  v.  De  Walt,  128  U.  S.  393;  Eilenbecker  v. 
District  Court  of  Plymouth  County,  i;54  U.  S.  31 ;  Louisville  and  Nash- 
ville Railroad  Co.  v.  Woodson,  134  U.  S.  614;  Cherokee  Nation  v.  South- 
ern Kansas  Railway,  135  U.  S.  CAl ;  In  re  Kemmler,  136  U.  S.  43(J. 

2  United  States  v.  Cooper,  4  Dall.  341;  United  States  r.  Coolidge,  1 
Wheat.  415;  Ex  parte  Kearney,  7  Wheat.  .38;  United  States  v.  Mills,  7 
Pet.  142;  Barron  v.  City  of  Baltimore.  7  Pet.  243;  Fox  v.  Ohio,  5  How. 
410;  United  States  v.  Dawson,  15  How.  467;  Withers  v.  Buckley,  20 
How.  84;  United  States  v.  Jackalow,  1  Black,  484;  Ex  parte  Milligan, 
4  Wall.  2;  Twitchell  v.  The  Commcmwealth,  7  Wall.  321;  Miller  r. 
United  States,  11  Wall.  268:  United  States  v.  Cook,  17  Wall.  168; 
Walker  v.  Sauvinet,  92  U.  S.  90 ;  United  States  v.  Cruikshank,  92  U.  S. 


710  APPENDIX. 


Appendix.  [Article  VII.] 

The  Coustitution.  j^  ^^.^^  ^^  common  law,  where  the  value  in  contro- 
versy shall  exceed  twenty  dollars,  the  right  of  trial  by 
jury  shall  be  preserved,  and  no  fact  tried  by  a  jury  shall 
be  otherwise  re-examined  in  any  Court  of  the  United 
States,  than  according  to  the  rules  of  the  common  law.^ 

[Article  VIII.] 
Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted.^ 

[Article  IX.] 
The  enumeration  in  the  Constitution,  of  certain  rights, 
shall  not  be  construed  to  deny  or  disparage  others  re- 
tained by  the  people.^ 

[Article  X.] 
The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  re- 
served to  the  States  respectively,  or  to  the  people.* 

542;  Reynolds  v.  United  States,  98  U.  S.  145;  United  States  v.  Union 
Pacific  Railroad,  98  U.  S.  569 ;  Hayes  v.  Missouri,  120  U.  S.  68 ;  Spies  v. 
Illinois,  123  U.  S.  131;  Brooks  v.  Missouri,  124  U.  S.  394;  Callan  v. 
Wilson,  127  U.  S.540;  Eilenbecker  v.  District  Court  of  Plymouth  County, 
134  U.  S.  31 ;  Jones  v.  United  States,  137  U.  S.  202 ;  Cook  v.  United  States, 
138  U.  S.  157. 

1  United  States  v.  La  "Vengeance,  3  Dall.  297 ;  Whelan  v.  United  States, 
7  Cranch,  112;  United  States  v.  Schooner  Betsey,  4  Cranch,  443;  Bank 
of  Columbia  v.  Okely,  4  Wheat.  235;  Bank  of  Hamilton  v.  Dudley's 
Heirs,  2  Pet.  492;  Parsons  v.  Bedford,  3  Pet.  433;  Lessee  of  Livingston 
V.  Moore,  7  Pet.  469;  Webster  v.  Reid,  11  How.  437;  Pennsylvania  v.  The 
Wheeling  &c.  Bridge  Co.,  13  How.  518;  Dodge  v.  Woolsey,  18  How.  331 ; 
The  Justices  v.  Murray,  9  Wall.  274;  Edwards  v.  Elliot,  21  Wall.  532; 
Walker  v.  Sauvinet,  92  U.  S.  90 ;  Pearson  v.  Yewdall,  95  U.  S.  294 ;  McEl- 
rath  V.  United  States,  102  U.  S.  426;  Barton  v.  Barbour,  104  U.  S.  126; 
Spies  V.  Illinois,  123  U.  S.  131;  Arkansas  Land  and  Cattle  Co.  v.  Mann, 
130  U.  S.  69;  Eilenbecker  v.  District  Court  of  Plymouth  County,  134  U.  S. 
31. 

2  Pervear  v.  Commonwealth,  5  Wall.  475;  Spies  v.  Illinois,  123  U.  S. 
131;  Eilenbecker  v.  District  Court  of  Plymouth  County,  134  U.  S.  31; 
In  re  Kemmler,  136  U.  S.  436. 

3  Lessee  of  Livingston  v.  Moore,  7  Pet.  469;  Spies  v.  Illinois,  123 
U.  S.  131. 

4  Chisholm  v.  Georgia,  2  Dall.  419;  Hollingsworth  v.  Virginia,  3  Dall. 
378;  Martin  v.  Hunter's  Lessee,  1  Wheat.  304;  McCulloch  v.  Maryland, 


THE    CONSTITUTION.  711 

[Article  XI.] 

The  Judicial  power  of  the  United  States  shall  not  be  Appendix, 
construed  to  extend  to  any  suit  in  law  or  equity,  com-  The  Constitution, 
menced  or  prosecuted  against  one  of  the  United  States 
by  Citizens  of  another  State,  or  by  Citizens  or  Subjects 
of  any  Foreign  State.' 

[AllTICLK  XII.] 

The  Electors  shall  meet  in  their  respective  states,  and 
vote  by  ballot  for  President  and  Vice  President,  one  of 
whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
state  with  themselves  ;  they  shall  name  in  their  ballots 
the  person  voted  for  as  President,  and  in  distinct  ballots 
the  person  voted  for  as  Vice-President,  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President, 
and  of  all  persons  voted  for  as  Vice-President,  and  of  the 
number  of  votes  for  each,  which  lists  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  seat  of  the  govern- 
ment of  the  United  States,  directed  to  the  President  of 
the  Senate; — The  President  of  the  Senate  shall,  in  pres- 

4  "Wheat.  316 ;  Anderson  v.  Dunn,  6  Wheat.  204 ;  Cohens  v.  Virginia,  6 
Wheat.  264;  Osborn  w.  United  States  Bank,  9  Wheat.  738;  Buckner  v. 
Finley,  2  Pet.  58G;  Dodge  v.  Woolsey,  18  How.  3ol ;  Ableman  v.  Booth, 
21  How.  50(5;  The  Collector  v.  Day,  11  Wall.  113;  Clatiin  v.  Houseman, 
93  U.  S.  130 ;  Innian  Steamship  Co.  v.  Tinker,  94  U.  S.  238 ;  United  States 
V.  Harris,  10()  U.  S.  G29 ;  Civil  Rights  Cases,  109  U.  S.  3 ;  Spies  v.  Illinois, 
123  U.  S.  131. 

1  Georgia  v.  Brailsford  rt  al.,  2  Dall.  402 ;  Chisholm  v.  Georgia,  2 
Dall.  419;  Hollingsworthr.  Virginia,  3  Dall.  378;  Bingham  v.  Cabot,  3 
Dall.  382;  United  States  v.  Peters,  5  Cranch,  115;  Cohens  v.  Virginia, 
6  Wheat.  2()4;  Osborn  v.  United  States  Bank,  9  Wheat.  738;  United 
States  Bank  v.  The  Planters'  Bank,  9  Wheat.  iK)4;  The  Governor  of 
Georgia  v.  Juan  ^Nladrazo,  1  Pet.  110 ;  Cherokee  Nation  v.  Georgia,  5  Pet.  1 ; 
Briscoe  ik  The  Bank  of  the  Commonwealth  of  Kentucky,  11  Pet.  257 ; 
Curran  ik  Arkansas,  15  How.  304;  Davis  v.  Gray,  10  Wall.  203;  Ten- 
nessee V.  Davis,  100  U.  S.  257 ;  Xew  Hampshire  f.  Louisiana,  108  U.  S. 
76;  New  York  ?-.  Louisiana,  108  U.  S.  76;  Clark  v.  Barnard,  108  U.  S. 
4;W;  Virginia  Coupon  Cases,  114  U.  S.  269;  Hagood  v.  Southern,  117 
U.  S.  52;  Rolston  v.  Missouri  Fund  Commissioners,  120  U.  S.  3<K);  In  re 
Ayers,  123  U.  S.  443;  Wisconsin  v.  Pelican  Insurance  Co.,  127  U.  S.  265; 
Lincoln  County  v.  Luning,  133  U.  S.  529;  Christian  v.  Atlantic  &  North 
Carolina  Railroad  Co.,  133  U.  S.  233;  Hans  v.  Louisiana,  134  U.  S.  1; 
North  Carolina  v.  Temple,  134  U.  S.  22;  Louisiana  ex  rd.  New  York 
Guaranty  &c.  Co.  r.  Steele,  i;^  U.  S.  230. 


712  APPENDIX. 

Appendix.  ence  of  the  Senate  and  House  of  Representatives,  open 

The  Constitution.  ^]|  ^|^g  certificates  and  the  votes  shall  then  be  counted  ; 
—  The  person  having  the  greatest  number  of  votes  for 
President,  shall  be  the  President,  if  such  number  be  a 
majority  of  the  whole  number  of  Electors  appointed; 
and  if  no  person  have  such  majority,  then  from  the  per- 
sons having  the  highest  numbers  not  exceeding  three  ou 
the  list  of  those  voted  for  as  President,  the  House  of 
Representatives  shall  choose  immediately,  by  ballot,  the 
President.  But  in  choosing  the  President,  the  votes 
shall  be  taken  by  states,  the  representation  from  each 
state  having  one  vote ;  a  quorum  for  this  purpose  shall 
consist  of  a  member  or  members  from  two-thirds  of  the 
states,  and  a  majority  of  all  the  states  shall  be  necessary 
to  a  choice.  And  if  the  House  of  Representatives  shall 
not  choose  a  President  whenever  the  right  of  choice  shall 
devolve  upon  them,  before  the  fourth  day  of  March  next 
following,  then  the  Vice-President  shall  act  as  President, 
as  in  the  case  of  the  death  or  other  constitutional  disability 
of  the  President.  The  person  having  the  greatest  num- 
ber of  votes  as  Vice-President,  shall  be  the  Vice-Presi- 
dent, if  such  number  be  a  majority  of  the  whole  number 
of  Electors  appointed,  and  if  no  person  have  a  majority, 
then  from  the  two  highest  numbers  on  the  list,  the  Sen- 
ate shall  choose  the  Vice-President ;  a  quorum  for  the 
purpose  shall  consist  of  two-thirds  of  the  whole  number 
of  Senators,  and  a  majority  of  the  whole  number  shall  be 
necessary  to  a  choice.  But  no  person  constitutionally 
ineligible  to  the  office  of  President  shall  be  eligible  to 
that  of  Vice-President  of  the  United  States.^ 


[Article  XIII.] 

Section  1.  Neither  slavery  nor  involuntary  servitude, 
except  as  a  punishment  for  crime  whereof  the  party  shall 
have  been  duly  convicted,  shall  exist  within  the  United 
States,  or  any  place  subject  to  their  jurisdiction. 

1  In  re  Green,  134  U.  S.  377. 


THE    CONSTITUTION.  713 

Section  2.    Congress  shall  have  power  to  enforce  this  Appendix, 
article  by  appropriate  legislation.'  '^^*^  Constitution. 

[Article  XIV.] 

Section  1.  All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  State  wherein 
they  reside.  No  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citi- 
zens of  the  United  States  ;  nor  shall  any  State  deprive 
any  person  of  life,  liberty,  or  property,  without  due  pro- 
cess of  law  ;  nor  deny  to  any  person  within  its  jurisdic- 
tion the  equal  protection  of  the  laws.'^ 

1  Dred  Scott  v.  Sandford,  19  How.  3{«;  Osborn  v.  Nicholson,  13  Wall. 
654;  Slaughterhouse  Cases,  16  Wall.  3(5;  Ex  parte  Vir.uinia,  100  U.  S. 
339;  United  States  v.  Harris,  106  U.  S.  621);  Civil  Rights  Case,  109 
U.  S.  3. 

-  Slaughterhouse  Cases,  16  Wall.  36;  Bradwell  v.  The  State,  16  Wall. 
130;  Bartemeyer  i'.  Iowa,  18  Wall.  129;  Minor  v.  Happersett,  21  Wall. 
162;  United  States  v.  Cruikshank,  92  U.  S.  542;  Davidson  v.  New 
Orleans,  VtfS  U.  S.  07 ;  Railroad  Co.  v.  Richmond,  tKi  U.  S.521 ;  Strauder  v. 
West  Virginia,  100  U.  S.  303;  Tirginia  v.  Rives,  100  U.  S.  313;  Ex  parte 
Virginia,  100  U.  S.  339;  Missouri  v.  Lewis,  101  U.  S.  22;  Springer  v. 
United  States,  102  U.  S.  586;  Kelly  v.  Pittsburgh,  104  U.  S.  78;  Bush  v. 
Kentucky,  107  U.  S.  110;  Pace  v.  Alabama,  10(5  U.  S.  5S3;  United  States 
V.  Harris,  106  U.  S.  629 ;  Gross  v.  United  States  Mortgage  Co..  108  U.  S. 
477;  Vance  v.  Vance,  108  U.  S.  514;  Civil  Rights  Ca.ses,  109  U.  S.  3; 
United  States  v.  Gale,  109  U.  S.  6o;  Louisiana  v.  New  Orleans,  lOit  U.  S. 
285;  Hurtado  v.  California,  110  U.  S.  516;  Ex  parte.  Varbrongh,  110 
U.  S.  651 ;  Hagar  v.  Reclamation  District,  111  U.  S.  701;  Elk  v.  Wilkins, 
112  U.  S.  94;  Foster  v.  Kansas,  112  U.  S.  205:  Head  r.  Anioskeag  Manu- 
facturing Co..  113  U.  S.  9;  Rarbier  v.  Connolly,  113  U.  S.  27;  Provident 
Institution  for  Savings  v.  Mayor  &c.  of  Jersey  City,  113  U.  S.  506;  Soon 
Hing  V.  Crowley.  113  U.  S.  703;  Wurts  v.  Hoagland,  114  U.  S.  i;06;  Ken- 
tucky  Railroad  Tax  Cases,  115  V.  S.  321 ;  Mis.souri  Pacific  Railway  Co.  v. 
Humes.  115  U.  S.  512;  Campbell  v.  Holt,  115  U.  S.  ()20;  Brown  v.  Grant, 
116  U.  S.  207  ;  Presser  v.  Illinois,  116  U.  S.  252;  Stone  r.  Farmers'  Loan 
and  Trust  Co.,  116  U.  S.  307;  Arrowsmith  v.  Harmoning.  lis  U.  S.  194; 
Tick  Wo  V.  Hopkins,  118  U.  S.  .'Wli;  Santa  Clara  County  ;•.  Southern 
Pacific  Railroad,  118  U.S.  3iH;  Philadelphia  Fire  Association  v.  New 
York,  119  U.  S.  110:  Home  Insurance  Co.  v.  New  York,  119  U.  S. 
129;  Schmidt  v.  Cobb,  119  U.  S.  286;  Kerr  v.  Illinois,  119  U.  S.  436; 
Hayes  v.  Missouri,  120  U.  S.  68;  Baldwin  v.  Franks,  120  U.  S.  678; 
Church  V.  Kelsey,  121  U.  S.  282;  Spies  ?'.  Illinois,  123  U.  S.  131 :  Sands 
V.  Manistee  River  Improvement  Co.,  123  U.  S.  288;  Mugler  r.  Kansas, 
123  U.  S.  623;  Great  Falls  Manufacturing  Co.  v.  Atloruey-General,  124 


714  APPENDIX. 

Appendix.  SECTION  2.  Eepresentatives  shall  be  apportioned  among 

The  Constitution,  ^j^g  several  States  according  to  their  respective  numbers, 
counting  the  whole  number  of  persons  in  each  State,  ex- 
cluding Indians  not  taxed.  But  when  the  right  to  vote 
at  any  election  for  the  choice  of  electors  for  President 
and  Vice-President  of  the  United  States,  Representatives 
in  Congress,  the  Executive  and  Judicial  officers  of  a 
State,  or  the  members  of  the  Legislature  thereof,  is  de- 
nied to  any  of  the  male  inhabitants  of  such  State,  being 
twenty-one  years  of  age,  and  citizens  of  the  United 
States,  or  in  any  way  abridged,  except  for  participation 
in  rebellion,  or  other  crime,  the  basis  of  representation 
therein  shall  be  reduced  in  the  proportion  which  the 
number  of  such  male  citizens  shall  bear  to  the  whole 
number  of  male  citizens  twenty-one  years  of  age  in  such 
State.  1 

Section  .3.  No  person  shall  be  a  Senator  or  Represen- 
tative in  Congress,  or  elector  of  President  and  Vice 
President,  or  hold  any  office,  civil  or  military,  under 
the  United  States,  or  under  any  State,  who,  having  pre- 

U.  S.  581 ;  Pembina  Consolidated  Mining  Co.  v.  Pennsylvania,  125  U.  S. 
181 ;  Spencer  v.  Mercliant,  125  U.  S.  345;  Dow  v.  Beidelman,  125  U.  S. 
680;  California  v.  Central  Pacific  Railroad  Co.,  127  U.  S.  1 ;  Ro  Bards  v. 
Lamb,  127  U.  S.  58;  Missouri  Pacific  Railway  Co.  v.  Mackey,  127  U.  S. 
205;  Minneapolis  and  St.  Louis  Railway  Co.  v.  Herrick,  127  IT.  S.  210; 
Powell  V.  Pennsylvania,  127  U.  S.  G78;  Mahon  v.  Justices,  127  U.  S.  700; 
Kidd  V.  Pearson,  128  U.  S.  1 ;  Nashville,  Chattanooga  &c.  Railway  Co. 
V.  Alabama,  128  U.  S.  96;  Walston  v.  Nevin,  128  U.  S.  578;  Minneapolis 
and  St.  Louis  Railway  v.  Beckwith,  129  U.  S.  26 ;  Dent  v.  West  Virginia, 
129  U.  S.  114;  Hilling  v.  Kaw  Valley  Railway  &c.  Co.,  l.SO  U.  S.  559; 
Freeland  v.  Williams,  131  U.  S.  405 ;  Cross  v.  North  Carolina,  132  U.  S. 
131;  Pennie  v.  Reis,  132  U.  S.  404;  Sugg  v.  Thornton,  132  U.  S.  524; 
Palmer  v.  McMahon,  133  U.  S.  660;  Eilenbecker  v.  District  Court  of 
Plymouth  County,  134  U.  S.  31 ;  Bell's  Gap  Railroad  Co.  v.  Pennsylvania, 
134U.  S.  232;  Chicago,  Milwaukee  &c.  Railway  Co.  v.  Minnesota,  134 
U.  S.  418;  Minneapolis  Eastern  Railway  Co.  v.  Minnesota,  134  U.  S.467; 
Home  Insurance  Co.  v.  New  York,  134  U.  S.  594 ;  Louisville  and  Nash- 
ville Railroad  Co.  v.  Woodson,  134  U.S.  614;  Norfolk  and  Western  Rail- 
road Co.  V.  Pennsylvania,  13()  U.  S.  114;  In  re  Kemmler,  136  U.  S.  436; 
York  V.  Texas,  137  U.  S.  15;  Crowley  v.  Christensen,  137  U.  S.  86 ;  Wheeler 
V.  Jackson,  137  U.  S.  245;  Holden  v.  Minnesota,  137  U.  S.  483;  In  re 
Converse,  137  U.  S.  624;  Caldwell  v.  Texas,  137  U.  S.  692;  Kauffman  v. 
Wootters,  138  U.  S.  285;  Leeper  v.  Texas,  139  U.  S.  462;  In  re  Manning, 
139  U.  S.  504 ;  Natal  v.  Louisiana,  139  U.  S.  621. 
1  Slaughterhouse  Cases,  16  Wall.  36. 


THE    CONSTITUTION.  710 

viously  taken  an  oath,  as  a  member  of  Congress,  or  as  an  Appendix, 
officer  of  the  United  States,  or  as  a  member  of  any  State  ^^^  Constitution, 
legislature,  or  as  an  executive  or  judicial  officer  of  any 
State,  to  support  the  Constitution  of  the  United  States, 
shall  have  engaged  in  insurrection  or  rebellion  against 
the  same,  or  given  aid  or  conafort  to  the  enemies  thereof. 
But  Congress  may  by  a  vote  of  two-thirds  of  each  House, 
remove  such  disability. 

Section  4.  The  validity  of  the  public  debt  of  the 
United  States,  authorized  by  law,  including  debts  in- 
curred for  payment  of  pensions  and  bounties  for  services 
in  suppressing  insurrection  or  rebellion,  shall  not  be 
questioned.  But  neither  the  United  States  nor  any 
State  shall  assume  or  pay  any  debt  or  obligation  incurred 
in  aid  of  insurrection  or  rebellion  against  the  United 
States,  or  any  claim  for  the  loss  or  emancipation  of  any 
slave  ;  but  all  such  debts,  obligations  and  claims  shall  be 
held  illegal  and  void. 

Section  5.  The  Congress  shall  have  power  to  enforce, 
by  appropriate  legislation,  the  provisions  of  this  article.^ 

[Article  XV.] 

Section  1.  The  right  of  citizens  of  the  United  States 
to  vote  shall  not  be  denied  or  abridged  by  the  United 
States  or  by  any  State  on  account  of  race,  color,  or  pre- 
vious condition  of  servitude. 

Section  2.  The  Congress  shall  have  power  to  enforce 
this  article  by  appropriate  legislation  .^ 

1  Crandall  v.  Nevada,  6  Wall.  35;  Paul  v.  Virginia,  8  Wall.  I(i8 ;  Ward 
V.  Maryland,  12  Wall.  418 ;  Slaughterhouse  Cases,  Ifi  Wall.  .'5(i;  Bradwell 
V.  The  State,  Ifi  Wall.  130;  Bartemeyer  v.  Iowa,  18  Wall.  12!t;  Minor  v. 
Happersett,  21  Wall.  lt)2 ;  Walker  v.  Sauvinet,  92  U.  S.  90 ;  Kennard  v. 
Louisiana,  ex  rel.  Morgan,  <)2  U.  S.  480;  United  States  r.Cruikshank,  02 
U.  S.  542;  Munn  v.  Illinois,  94  U.  S.  113;  Virginia  v.  Rives,  100  U.  S. 
313 ;  Strauder  v.  West  Virginia,  100  U.  S.  303 ;  United  States  v.  Harris, 
106  U.  S.  629;  Civil  Rights  Cases,  109  U.  S.  3. 

2  Minor  v.  Happersett,  21  Wall.  162;  United  States  v.  Reese,  92  U.  S. 
214;  United  States  v.  Cruikshank,  92  U.  S.  542;  Neal  v.  Delaware,  103 
U.  S.  370 ;  United  States  v.  Harris,  106  U.  S.  629 ;  Ex  parte  Yarbrough, 
110  U.  S.  651. 


716  APPENDIX. 


UNITED  STATES  OF   AMERICA. 

DEPARTMENT    OF    STATE. 

Appendix.  To  all  to  whom  these  presents  shall  come,  Greeting  : 

The  Constitution.  j  certify  that  the  documents  hereto  annexed  are  true  copies, 
from  the  Archives  of  this  Department,  of  the  Constitution  of 
the  United  States  of  America  with  the  amendments ;  and  that 
said  copy  has  been  carefully  compared  with  the  original  and 
found  to  be  correct  in  text,  letter  and  punctuation. 

In  testimony  whereof  I,  William  F.  Wharton,  Acting 
Secretary  of  State  of  the  United  States,  have  here- 
unto subscribed  my  name  and  caused  the  seal  of  the 
[seal.]     Department  of  State  to  be  affixed. 

Done  at  the  City  of  Washington,  this  15th  day  of 
June,  A.D.,  1891,  and  of  the  Independence  of  the 
United  States  of  America  the  one  hundred  and  fif- 
teenth. 

William  F.  Wharton. 


II. 

[ARTICLES  OF  CONFEDERATION— 1777.] 

Articles  of  To  all  to  whom  these  Presents  shall  come,  ive  the  under- 

Confederation.  signed  Delegates  of  the  States  affixed  to  our  Names  send 

greeting. 

Whereas  the  Delegates  of  the  United  States  of  Amer- 
ica in  Congress  assembled  did  on  the  fifteenth  day  of 
November  in  the  Year  of  our  Lord  One  Thousand  Seven 
Hundred  and  Seventyseven,  and  in  the  Second  Year  of 
the  Independence  of  America  agree  to  certain  articles  of 
Confederation  and  perpetual  Union  between  the  States 
of  Newhampshire,  Massachusetts-bay,  Rhodeisland  and 
Providence  Plantations,  Connecticut,  New  York,  New 
Jersey,  Pennsylvania,  Delaware,  Maryland,  Virginia, 
North-Carolina,  South-Carolina  and  Georgia  in  the 
Words  following,  viz. 


ARTICLES    OF    CONFEDERATION.  717 

"  Articles  of  Confederation  and  perpetual   Union  between  Appendix. 
the  States  of  Neivhamjyshire,  Massachusetts-hay,  Rhode-  Articles  of 
island  and  Providence  Plantations,   Connecticut,  Neio- 
York,  New-Jersey,  Pennsylvania,  Delaware,  Maryland, 
Virginia,  North-Carolina,  South-Carolina  and  Georgia. 

Article  I.  The  Stile  of  this  confederacy  shall  be 
"  The  United  States  of  America." 

Akticlk  II.  Each  State  retains  its  sovereignty,  free- 
dom and  independence,  and  every  Power,  Jurisdiction 
and  right,  which  is  not  by  this  confederation  expressly 
delegated  to  the  United  States,  in  Congress  assembled. 

Article  III.  The  said  states  hereby  severally  enter 
into  a  firm  league  of  friendship  with  each  other,  for 
their  common  defence,  the  security  of  their  Liberties, 
and  their  mutual  and  general  welfare,  binding  them- 
selves to  assist  each  other,  against  all  force  offered  to, 
or  attacks  made  upon  them,  or  any  of  them,  on  account 
of  religion,  sovereignty,  trade,  or  any  other  pretence 
whatever. 

Article  IV.  The  better  to  secure  and  perpetuate 
mutual  friendship  and  intercourse  among  the  people  of 
the  different  states  in  this  union,  the  free  inhabitants  of 
each  of  these  states,  paupers,  vagabonds  and  fugitives 
from  justice  excepted,  shall  be  entitled  to  all  privileges 
and  immunities  of  free  citizens  in  the  several  states ; 
and  the  people  of  each  state  shall  have  free  ingress  and 
regress  to  and  from  any  other  state,  and  shall  enjoy 
therein  all  the  privileges  of  trade  and  commerce,  subject 
to  the  same  duties,  impositions  and  restrictions  as  the 
inhabitants  thereof  respectively,  provided  that  such 
restriction  shall  not  extend  so  far  as  to  prevent  the 
removal  of  property  imported  into  any  state,  to  any 
other  state  of  which  the  Owner  is  an  inhabitant;  pro- 
vided also  that  no  imposition,  duties  or  restriction  shall 
be  laid  by  any  state,  on  the  property  of  the  united  states, 
or  either  of  them. 

If  any  Person  guilty  of,  or  charged  with  treason,  fel- 
ony, or  other  high  misdemeanor  in  any  state,  shall  flee 
from  Justice,  and  be  found  in  any  of  the  united  states, 


718 


APPENDIX. 


Appendix. 
Articles  of 
Confederation. 


he  shall  upon  demand  of  the  Governor  or  executive 
power,  of  the  state  from  which  he  fled,  be  delivered  up 
and  removed  to  the  state  having  jurisdiction  of  his 
offence. 

Full  faith  and  credit  shall  be  given  in  each  of  these 
states  to  the  records,  acts  and  judicial  proceedings  of 
the  courts  and  magistrates  of  every  other  state. 

Article  V.  For  the  more  convenient  management  of 
the  general  interests  of  the  united  states,  delegates  shall 
be  annually  appointed  in  such  manner  as  the  legisla- 
ture of  each  state  shall  direct,  to  meet  in  Congress  on 
the  first  Monday  in  November,  in  every  year,  with  a 
power  reserved  to  each  state,  to  recall  its  delegates,  or 
any  of  them,  at  any  time  within  the  year,  and  to  send 
others  in  their  stead,  for  the  remainder  of  the  Year. 

No  state  shall  be  represented  in  Congress  by  less  than 
two,  nor  by  more  than  seven  Members  ;  and  no  person 
shall  be  capable  of  being  a  delegate  for  more  than  three 
years  in  any  term  of  six  years ;  nor  shall  any  person, 
being  a  delegate,  be  capable  of  holding  any  office  under 
the  united  states,  for  which  he,  or  another  for  his 
benefit  receives  any  salary,  fees  or  emolument  of  any 
kind. 

Each  state  shall  maintain  its  own  delegates  in  a  meet- 
ing of  the  states,  and  while  they  act  as  members  of  the 
committee  of  the  states. 

In  determining  questions  in  the  united  states,  in  Con- 
gress assembled,  each  state  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  Congress  shall  not 
be  impeached  or  questioned  in  any  Court,  or  place  out 
of  Congress,  and  the  members  of  congress  shall  be  pro- 
tected in  their  persons  from  arrests  and  imprisonments, 
during  the  time  of  their  going  to  and  from,  and  attend- 
ance on  Congress,  except  for  treason,  felony,  or  breach 
of  the  peace. 

Article  VI.  No  state  without  the  consent  of  the 
united  states  in  congress  assembled,  shall  send  any 
embassy  to,  or  receive  any  embassy  from,  or  enter  into 
any  conference,  agreement,  alliance  or  treaty  with  any 
King  prince  or  state ;  nor  shall  any  person  holding  any 


ARTICLES    OF    CONFEDERATION.  719 

office  of  profit  or  trust  under  the  united  states,  or  any  of  Appendix. 

them,  accept  of  any  present,  emohiment,  otHcjc  or  title  of  -^'''"l'^'''  "^ 

,  .     ,        ,     .  ,.  ,  .  .  p       •        Confederation, 

any  kind  whatever  ironi   any    king,    prince   or  foreign 

state  ;   nor  shall  the  united  states  in  congress  assembled, 

or  any  of  them,   grant  any  title  of  nobility. 

No  two  or  more  states  shall  enter  into  any  treaty, 
confederation  or  alliance  whatever  between  them,  with- 
out the  consent  of  the  united  states  in  congress  as- 
sembled, specifying  accurately  the  purposes  for  which 
the  same  is  to  be  entered  into,  and  how  long  it  shall 
continue. 

No  state  shall  lay  any  imposts  or  duties,  which  may 
interfere  with  any  stipulations  in  treaties,  entered  into 
by  the  united  states  in  congress  assembled,  with  any 
king,  prince  or  state,  in  pursuance  of  any  treaties 
already  proposed  by  congress,  to  the  courts  of  France 
and  Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace 
by  any  state,  except  such  number  only,  as  shall  be 
deemed  necessary  by  the  united  states  in  congress 
assembled,  for  the  defence  of  such  state,  or  its  trade; 
nor  shall  any  body  of  forces  be  kept  up  by  any  state, 
in  time  of  peace,  except  such  number  only,  as  in  the 
judgment  of  the  united  states,  in  congress  assembled, 
shall  be  deemed  requisite  to  garrison  the  forts  necessary 
for  the  defence  of  such  state  ;  but  every  state  shall 
always  keep  up  a  well  regulated  and  discijilined  militia, 
sufficiently  armed  and  accoutred,  and  shall  provide  and 
constantly  have  ready  for  use,  in  public  stores,  a  due 
number  of  field  pieces  and  tents,  and  a  proper  quantity 
of  arms,  ammunition  and  camp  equipage. 

No  state  shall  engage  in  any  war  without  the  consent 
of  the  united  states  in  congress  assembled,  unless  such 
state  be  actually  invaded  by  enemies,  or  shall  have  re- 
ceived certain  advice  of  a  resolution  being  formed  by 
some  nation  of  Indians  to  invade  such  state,  and  the  dan- 
ger is  so  imminent  as  not  to  admit  of  a  delay,  till  the 
united  states  in  congress  assembled  can  be  consulted:  nor 
shall  any  state  grant  commissions  to  any  ships  or  vessels 
of  war,  nor  letters  of  marque  or  reprisal,  except  it  be 


720  APPENDIX. 

Appendix.  after  a  declaration  of  war  by  the  united  states  in  con- 

Articles  of  gress  assembled,  and  then  only  against  the  kingdom  or 

state  and  the  subjects  thereof,  against  which  war  has 
been  so  declared,  and  under  such  regulations  as  shall  be 
established  by  the  united  states  in  congress  assembled, 
unless  such  state  be  infested  by  pirates,  in  which  case 
vessels  of  war  may  be  fitted  ovit  for  that  occasion,  and 
kept  so  long  as  the  danger  shall  continue,  or  until  the 
united  states  in  congress  assembled  shall  determine 
otherwise. 

Article  VII.  When  land-forces  are  raised  by  any 
state  for  the  common  defence,  all  officers  of  or  under  the 
rank  of  colonel,  shall  be  appointed  by  the  legislature  of 
each  state  respectively  by  whom  such  forces  shall  be 
raised,  or  in  such  manner  as  such  state  shall  direct, 
and  all  vacancies  shall  be  filled  up  by  the  state  which 
first  made  the  appointment. 

Article  VIII.  All  charges  of  war,  and  all  other  ex- 
penses that  shall  be  incurred  for  the  common  defence  or 
general  welfare,  and  allowed  by  the  united  states  in 
congress  assembled,  shall  be  defrayed  out  of  a  common 
treasury,  which  shall  be  supplied  by  the  several  states, 
in  proportion  to  the  value  of  all  land  within  each  state, 
granted  to  or  surveyed  for  any  Person,  as  such  land  and 
the  buildings  and  improvements  thereon  shall  be  esti- 
mated according  to  such  mode  as  the  united  states  in 
congress  assembled,  shall  from  time  to  time  direct  and 
appoint. 

The  taxes  for  paying  that  proportion  shall  be  laid  and 
levied  by  the  authority  and  direction  of  the  legislatures 
of  the  several  states  within  the  time  agreed  upon  by  the 
united  states  in  congress  assembled. 

Article  IX.  The  united  states  in  congress  assembled, 
shall  have  the  sole  and  exclusive  right  and  power  of 
determining  on  peace  and  war,  except  in  the  cases  men- 
tioned in  the  sixth  article — of  sending  and  receiving 
ambassadors  —  entering  into  treaties  and  alliances,  pro- 
vided that  no  treaty  of  commerce  shall  be  made  whereby 
the  legislative  power  of  the  respective  states  shall  be  re- 
strained from  imposing  such  imposts  and  duties  on  for- 


ARTICLES    OF    CONFEDERATION.  721 

eigners,  as  their  own  people  are  subjected  to,  or  from  Appendix, 
prohibiting  the  exportation  or  importation  of  any  species  Articles  of 
of  goods  or  commodities  whatsoever — of  establishing 
rules  for  deciding  in  all  cases,  what  captures  on  land  or 
water  shall  be  legal,  and  in  what  manner  prizes  taken 
by  land  or  naval  forces  in  the  service  of  the  united 
states  shall  be  divided  or  appropriated  —  of  granting 
letters  of  marque  and  reprisal  in  times  of  peace  —  ap- 
pointing courts  for  the  trial  of  piracies  and  felonies  com- 
mitted on  the  high  seas  and  establishing  courts  for 
receiving  and  determining  finally  appeals  in  all  cases  of 
captures,  provided  that  no  member  of  congress  shall  be 
appointed  a  judge  of  any  of  the  said  courts. 

The  united  states  in  congress  assembled  shall  also  be 
the  last  resort  on  appeal  in  all  disputes  and  differences 
now  subsisting  or  that  hereafter  may  arise  between  two 
or  more  states  concerning  boundary,  jurisdiction  or  any 
other  cause  whatever ;  which  authority  shall  always  be 
exercised  in  the  manner  following.  Whenever  the  legis- 
lative or  executive  au.thority  or  lawful  agent  of  any 
state  in  controversy  with  another  shall  present  a  peti- 
tion to  congress,  stating  the  matter  in  question  and 
praying  for  a  hearing,  notice  thereof  shall  be  given  by 
order  of  congress  to  the  legislative  or  executive  author- 
ity of  the  other  state  in  controversy,  and  a  day  assigned 
for  the  appearance  of  the  parties  by  their  lawful  agents, 
who  shall  then  be  directed  to  appoint  by  joint  consent, 
commissioners  or  judges  to  constitute  a  court  for  hearing 
and  determining  the  matter  in  question :  but  if  they  can- 
not agree,  congress  shall  name  three  persons  out  of  each 
of  the  united  states,  and  from  the  list  of  such  persons 
each  party  shall  alternately  strike  out  one,  the  peti- 
tioners beginning,  until  the  number  shall  be  reduced  to 
thirteen  ;  and  from  that  number  not  less  than  seven,  nor 
more  than  nine  names  as  congress  shall  direct,  shall  in 
the  presence  of  congress  be  drawn  out  by  lot,  and  the 
persons  whose  names  shall  be  so  drawn  or  any  five 
of  them,  shall  be  commissioners  or  judges,  to  hear  and 
finally  determine  the  controversy,  so  always  as  a  major 
part  of  the  judges  who  shall  hear  the  cause  shall  agree 


722 


APPENDIX. 


Appendix. 
Articles  of 
Confederation. 


in  the  determination  :  and  if  either  party  shall  neglect 
to  attend  at  the  day  appointed,  Avithout  showing  reasons, 
which  congress  shall  judge  sufficient,  or  being  present 
shall  refuse  to  strike,  the  congress  shall  proceed  to  nomi- 
nate three  persons  out  of  each  state,  and  the  secretary  of 
congress  shall  strike  in  behalf  of  such  party  absent  or 
refusing;  and  the  judgment  and  sentence  of  the  court  to 
be  appointed,  in  the  manner  before  prescribed,  shall  be 
final  and  conclusive  ;  and  if  any  of  the  parties  shall  re- 
fuse to  submit  to  the  authority  of  such  court,  or  to 
appear  or  defend  their  claim  or  cause,  the  court  shall 
nevertheless  proceed  to  pronounce  sentence,  or  judgment, 
which  shall  in  like  manner  be  final  and  decisive,  the 
judgment  or  sentence  and  other  proceedings  being  in 
either  case  transmitted  to  congress,  and  lodged  among 
the  acts  of  congress  for  the  security  of  the  parties  con- 
cerned :  provided  that  every  commissioner,  before  he  sits 
in  judgment,  shall  take  an  oath  to  be  administered  by 
one  of  the  judges  of  the  supreme  or  superior  court  of 
the  state,  where  the  cause  shall  be  tried,  "  well  and 
truly  to  hear  and  determine  the  matter  in  question,  ac- 
cording to  the  best  of  his  judgment,  without  favour, 
affection  or  hope  of  reward : "  provided  also  that  no 
state  shall  be  deprived  of  territory  for  the  benefit  of  the 
united  states. 

All  controversies  concerning  the  private  right  of  soil 
claimed  under  different  grants  of  two  or  more  states, 
whose  jurisdictions  as  they  may  respect  such  lands,  and 
the  states  which  passed  such  grants  are  adjusted,  the 
said  grants  or  either  of  them  being  at  the  same  time 
claimed  to  have  originated  antecedent  to  such  settlement 
of  jurisdiction,  shall  on  the  petition  of  either  party  to 
the  congress  of  the  united  states,  be  finally  determined 
as  near  as  may  be  in  the  same  manner  as  is  before  pre- 
scribed for  deciding  disputes  respecting  territorial  juris- 
diction between  different  states. 

The  united  states  in  congress  assembled  shall  also 
have  the  sole  and  exclusive  right  and  power  of  regulat- 
ing the  alloy  and  value  of  coin  struck  by  their  own 
authority,  or  by  that  of   the  respective  states  —  fixing 


ARTICLES    OF    CONFEDERATION.  723 

the  standard  of  weights  and  measures  throughout  the  Appendix, 
united  states,  —  regulating  the  trade  and  managing  all  '^'■"<^'f'»  "^ 
affairs  with  the  Indians,  not  members  of  any  of  the 
states,  provided  that  the  legislative  right  of  any  state 
within  its  own  limits  be  not  infringed  or  violated  — 
establishing  and  regulating  post-offices  from  one  state  to 
another,  throughout  all  the  united  states,  and  exacting 
such  postage  on  the  papers  passing  thro'  the  same  as 
may  be  requisite  to  defray  the  expenses  of  the  said 
office  —  appointing  all  officers  of  the  land  forces,  in  the 
service  of  the  united  states,  excepting  regimental  officers 
—  appointing  all  the  officers  of  the  naval  forces,  and 
commissioning  all  officers  whatever  in  the  service  of  the 
united  states  —  making  rules  for  the  government  and 
regulation  of  the  said  land  and  naval  forces,  and  direct- 
ing their  operations. 

The  united  states  in  congress  assembled  shall  have 
authority  to  appoint  a  committee,  to  sit  in  the  recess  of 
congress,  to  be  denominated  ''a  committee  of  the  states," 
and  to  consist  of  one  delegate  from  each  state,  and  to 
appoint  such  other  committees  and  civil  officers  as  may 
be  necessary  for  managing  the  general  affairs  of  the 
united  states  under  their  direction  —  to  appoint  one  of 
their  number  to  preside,  provided  that  no  person  be 
allowed  to  serve  in  the  office  of  president  more  than  one 
year  in  any  term  of  three  years  ;  to  ascertain  the  neces- 
sary sums  of  Money  to  be  raised  for  the  service  of  the 
united  states,  and  to  appropriate  and  apply  the  same  for 
defraying  the  public  expenses  —  to  borrow  money,  or 
emit  bills  on  the  credit  of  the  united  states,  transmitting 
every  half  year  to  the  respective  states  an  account  of  the 
sums  of  money  so  borrowed  or  emitted,  —  to  build  and 
equip  a  navy  —  to  agree  upon  the  number  of  land  forces, 
and  to  make  requisitions  from  each  state  for  its  (piota,  in 
proportion  to  the  number  of  white  inhabitants  in  such 
state;  which  requisition  shall  be  binding,  and  there- 
upon the  legislature  of  each  state  shall  appoint  the  regi- 
mental officers,  raise  the  men  and  cloath,  arm  and  equip 
them  in  a  soldier  like  manner,  at  the  expense  of  the 
united  states,  and  the  officers  and  men  so  cloathed,  armed 


724  APPENDIX. 

Appendix.  and  equipped  shall  march  to  the  place  appointed,   and 

Articles  of  ^  within  the  time  agreed  on  by  the  united  states  in  con- 

gress assembled :  But  if  the  united  states  in  congress 
assembled  shall,  on  consideration  of  circumstances  judge 
proper  that  any  state  should  not  raise  men,  or  should 
raise  a  smaller  number  than  its  quota,  and  that  any 
other  state  should  raise  a  greater  number  of  men  than 
the  quota  thereof,  such  extra  number  shall  be  raised, 
officered,  cloathed,  armed  and  equipped  in  the  same 
manner  as  the  quota  of  such  state,  unless  the  legislature 
of  such  state  shall  judge  that  such  extra  number  cannot 
be  safely  spared  out  of  the  same,  in  which  case  they 
shall  raise  officer,  cloath,  arm  and  equip  as  many  of 
such  extra  number  as  they  judge  can  be  safely  spared. 
And  the  officers  and  men  so  cloathed,  armed  and 
equipped,  shall  march  to  the  place  appointed,  and 
within  the  time  agreed  on  by  the  united  states  in 
congress   assembled. 

The  united  states  in  congress  assembled  shall  never 
engage  in  a  war,  nor  grant  letters  of  marque  and  re- 
prisal in  time  of  peace,  nor  enter  into  any  treaties  or 
alliances,  nor  coin  money,  nor  regulate  the  value  thereof, 
nor  ascertain  the  sums  and  expenses  necessary  for  the 
defence  and  welfare  of  the  united  states,  or  any  of  them, 
nor  emit  bills,  nor  borrow  money  on  the  credit  of  the 
united  states,  nor  appropriate  money,  nor  agree  upon  the 
number  of  vessels  of  war,  to  be  built  or  purchased,  or 
the  number  of  land  or  sea  forces  to  be  raised,  nor 
appoint  a  commander  in  chief  of  army  or  navy,  unless 
nine  states  assent  to  the  same  :  nor  shall  a  question  on 
any  other  point,  except  for  adjourning  from  day  to  day 
be  determined,  unless  by  the  votes  of  a  majority  of  the 
united  states  in  congress  assembled. 

The  congress  of  the  united  states  shall  have  power  to 
adjourn  to  any  time  within  the  year,  and  to  any  place 
within  the  united  states,  so  that  no  period  of  adjourn- 
ment be  for  a  longer  duration  than  the  space  of  six 
Months,  and  shall  publish  the  Journal  of  their  proceed- 
ings monthly,  except  such  parts  thereof  relating  to 
treaties,  alliances    or   military   operations,    as   in   their 


ARTICLES    OF    CONFEDERATION.  725 

judgment  require  secresy  ;  and  the  yeas  and  nays  of  Appenriix. 
the  delegates  of  each  state  on  any  question  shall  be  -y '•■'*"*  "f 
entered  on  the  journal,  when  it  is  desired  by  any  dele- 
gate ;  and  the  delegates  of  a  state,  or  any  of  them,  at  his 
or  their  request  shall  be  furnished  with  a  transcript  of 
the  said  Journal,  except  such  parts  as  are  above  excepted, 
to  lay  before  the  legislatures  of  the  several  states. 

Akticle  X.  The  committee  of  the  states,  or  any  nine 
of  them,  shall  be  authorized  to  execute,  in  the  recess  of 
congress,  such  of  the  powers  of  congress  as  the  united 
states  in  congress  assembled,  by  the  consent  of  nine 
states,  shall  from  time  to  time  think  expedient  to  vest 
them  with ;  provided  that  no  power  be  delegated  to  the 
said  committee,  for  the  exercise  of  which,  by  the  articles 
of  confederation,  the  voice  of  nine  states  in  the  congress 
of  the  united  states  assembled  is  requisite. 

Article  XI.  Canada  acceding  to  this  confederation, 
and  joining  in  the  measures  of  the  united  states,  shall 
be  admitted  into,  and  entitled  to  all  the  advantages  of 
this  union  :  but  no  other  colony  shall  be  admitted  into 
the  same,  unless  such  admission  be -agreed  to  by  nine 
states. 

Article  XII.  All  bills  of  credit  emitted,  monies 
borrowed  and  debt  contracted  by,  or  under  the  authority 
of  congress,  before  the  assembling  of  the  united  states, 
in  pursuance  of  the  present  confederation,  shall  be 
deemed  and  considered  as  a  charge  against  the  united 
states,  for  payment  and  satisfaction  whereof  the  said 
united  states,  and  the  public  faith  are  hereby  solemnly 
pledged. 

Article  XIII.  Every  state  shall  abide  by  the  deter- 
minations of  the  united  states  in  congress  assembled,  on 
all  questions  which  by  this  confederation  are  submitted 
to  them.  And  the  Articles  of  this  confederation  shall 
be  inviolably  observed  by  every  state,  and  the  union 
shall  be  perpetual ;  nor  shall  any  alteration  at  any  time 
hereafter  be  made  in  any  of  them ;  unless  such  alteration 
be  agreed  to  in  a  congress  of  the  united  states,  and  be 
afterwards  confirmed  b}^  the  legislatures  of  every  state. 

And  whereas    it   has  pleased   the  Great  Governor  of 


72G 


APPENDIX. 


Appendix. 
Articles  of 
Confederation. 


the  World  to  incline  the  hearts  of  the  legislatures  we 
respectively  represent  in  congress,  to  approve  of,  and  to 
authorize  us  to  ratify  the  said  articles  of  confederation 
and  perpetual  union.  Know  ye  that  we  the  under- 
signed delegates,  by  virtue  of  the  power  and  authority 
to  us  given  for  that  purpose,  do  by  these  presents,  in  the 
name  and  in  behalf  of  our  respective  constituents,  fully 
and  entirely  ratify  and  confirm  each  and  every  of  the  said 
articles  of  confederation  and  perpetual  union,  and  all  and 
singular  the  matters  and  things  therein  contained  :  And 
we  do  further  solemnly  plight  and  engage  the  faith  of  our 
respective  constituents,  that  they  shall  abide  by  the  de- 
terminations of  the  united  states  in  congress  assembled, 
on  all  questions,  which  by  the  said  confederation  are 
submitted  to  them.  And  that  the  articles  thereof  shall 
be  inviolably  observed  by  the  states  we  repectively 
represent,  and  that  the  union  shall  be  perpetual. 


In  witness  whereof  we  have  hereunto  set  our  hands 
in  Congress.  Done  at  Philadelphia  in  the  State  of 
Pennsylvania  the  ninth  Day  of  July  in  the  Year  of 
our  Lord  one  Thousand  seven  Hundred  and  Seventy- 
eight,  and  in  the  third  Year  of  the  independence  of 
America. 


On  the  part  &  behalf  of  the  State  of  Neio  Hampshire 

JosiAH  Bartlett  John  Wentworth,  Junr 

August  8th,  1778. 


On  the  part  and  behalf  of  the  State  of  Massachusetts  Bay 

Francis  Dana 
James  Loveli^ 
Samuel  Holten 


John  Hancock 
Samuel  Adams 
Elbridge  Gerry 


On  the  part  and  behalf  of  the  State  of  Rhode  Island  and 
Providence  Plantations 


William  Ellery 
Henry  Marchant 


John  Collins 


ARTICLES    OF    CONFEDERATION.  727 

On  the  part  and  behalf  of  the  State  of  Connecticut  Appendix. 

Roger  Sherman  Titus  Hosmer  Anides  of 

o  I,  »  .  Confederation. 

bAMUEL  Huntington  Andrew  Adams 

Oliver  Wolcott 

On  the  part  and  Behalf  of  the  State  of  New  York 
Jas.  Duane  VVm.  Uuer, 

Fra.  Lewis  Gouv.  Morris. 

On  the  part  and  in  Behalf  of  the  State  of  New  Jersey, 
Novr.  26,  1778. 
Jno.  Witherspoon  Nathl.  Scudder. 

On  the  part  and  behalf  of  the  State  of  Pennslyvania 
Robt.  Mohri.s,  William  Clingan, 

Daniel  Koberdeau  Joseph  Reed,  22d  July,  1778. 

JoNA.  Bayard  Smith 

On  the  p)art  &  behalf  of  the  State  of  Delaicare 
Tho.  M'Kean,  Feby.  12,  1779.  Nicholas  Van  Dyke, 
John  DicKiNSON-May  5th,  1779. 

On  the  part  and  behalf  of  the  State  of  Maryland 
John  Hanson,  March  1,  1781.    Daniel  Carroll,  do. 

On  the  Part  and  Behalf  of  the  State  of  Virginia 
Richard  Henry  Lee  Jno.  Harvme 

John  Banister  Francis  Lightfoot  Lee. 

Thomas  Adams 

On  the  part  and  Behalf  of  the  State  of  No.  Carolina 
John  Penn  July  21st.  1778.       Jno.  Williams 
Corns.  Harnett 

On  the  part  &  behalf  of  the  State  of  South  Carolina 
Henry  Laurens,  Richd.  Hutson, 

William  Henry  Drayton       Thos.  Heyward,  Junr. 
Jno.  Mathews 

On  the  part  &  behalf  of  the  State  of  Georgia 
Jno.  Walton,  24th  July  1778.  Edwd.  Langwortiiy. 
Edwd.  Telfair 

Endorsed :  —  Act  of  Confederation  of  the  United  States 
of  America. 


728  APPENDIX. 


UNITED   STATES   OF   AMERICA. 

DEPARTMENT    OF    STATE. 


Appendix.  To  all  to  whom  these  presents  shall  come,  Greeting 

Articles  of 

Confederation 


I  certify  That  the  document  hereto  annexed  is  a  true  copy, 
from  the  Archives  of  this  Department,  of  the  original  Articles 
of  Confederation  as  engrossed  and  signed  in  Congress. 

In  testimony  whereof  I,  William  F.  Wharton,  Acting 
Secretary  of  State  of  the  United  States,  have  here- 
unto subscribed  my  name  and  caused  the  seal  of  the 
[seal.]     Department  of  State  to  be  affixed. 

Done  at  the  City  of  Washington  this  12th  day  of 
June,  A.D.,  1891,  and  of  the  Independence  of  the 
United  States  of  America  the  one  hundred  and  fif- 
teenth. 

William  F.  Wharton. 


III. 

RESOLUTIONS, 

Offered   by   Mr.    Edmund    Randolph   to   the   Con- 
vention, May  29,  1787. 

Randolph's  Draft.  ^-  E.esolved,  that  the  Articles  of  the  Confederation 
ought  to  be  so  corrected  and  enlarged,  as  to  accomplish 
the  objects  proposed  by  their  institution,  namely,  com- 
mon defence,  security  of  Liberty  and  general  welfare. 

2.  Resolved,  therefore,  that  the  right  of  suffrage,  in 
the  National  Legislature,  ought  to  be  proportioned  to 
the  quotas  of  contribution,  or  to  the  number  of  free 
inhabitants,  as  the  one  or  the  other  may  seem  best,  in 
different  cases. 

3.  Resolved,  that  the  National  Legislature  ought  to 
consist  of  tico  branches. 

4.  Resolved,  that  the  members  of  the  Jij-st  branch  of 
the  National  Legislature  ought  to  be  elected  by  the 
people  of  the  several  States,  every  for  the  term 


Randolph's  draft.  721> 

of  to  be  of  the  age  of        years  at  least;  to  re-  Appendix, 

ceive  liberal  stipends,  by  which  they  may  be  compensated  Kii»<i«'ph's  Draft, 
for  the  devotion  of  their  time  to  publick  service ;  to  be 
in-eligible  to  any  office  established  by  a  particular  state, 
or  under  the  authority  of  the  United  States  (except 
those  peculiarly  belonging  to  the  functions  of  the  first 
branch)  during  the  term  of  service  and  for  the  space  of 
after  its  expiration ;  to  be  incapable  of  re-elec- 
tion for  the  space  of  after  the  expiration  of  their 
term  of  service ;  and  to  be  subject  to  recal. 

5.    Kesolved,  that   the   Members   of  the  branch 

of  the  National  Legislature  ought  to  be  elected  by  those 
of  the  first,  out  of  a  proper  number  of  persons  nominated 
by  the  individual  Legislatures ;  to  be  of  the  age  of 
years,  at  least ;  to  hold  their  offices  for  a  terra  sufficient 
to  ensure  their  independency ;  to  receive  liberal  stipend, 
by  which  they  may  be  compensated  for  the  devotion  of 
their  time  to  the  publick  service  ;  and  to  be  ineligible  to 
any  office  established  by  a  particular  state,  or  under  the 
authority  of  the  United  States  (except  those  peculiarly 
belonging  to  the  functions  of  the  second  branch)  during 
the  term  of  service ;  and  for  the  space  of  after 

the  expiration  thereof. 

6.  Resolved,  that  each  branch  ought  to  possess  the 
right  of  originating  acts ;  that  the  Nat'l  Leg.  ought  to 
be  empowered  to  enjoy  the  Legislatioe  right  vested  in 
Congress,  by  the  Confederation ;  and  moreover  to  Legis- 
late in  all  cases  to  which  the  separate  States  are  incom- 
petent, or  in  which  the  harmony  of  the  United  States 
may  be  interrupted  by  the  exercise  of  individual  legisla- 
tion ;  to  negative  all  laws  passed  by  the  several  States, 
contravening,  in  the  opinion  of  ...  .  the  Nat'l  Leg'e, 
the  Articles  of  Union,  or  any  Treaty  subsisting  under 
the  authority  of  the  Union  ;  and  to  call  forth  the  force 
of  the  Union  against  any  member  of  the  Union,  failing 
to  fulfil  its  duty  under  the  Articles  thereof. 

7.  Resolved,  that  a  National  Executive  be  instituted, 
to  be  chosen  by  the  Nat'l  Leg'e  for  the  term  of  years, 
to  receive  punctually,  at  stated  times,  a  fixed  compensa- 


ToO  APPENDIX. 

Appendix.  tion  for  the  services  rendered,  in  which  no  increase  or 

Randolph's  Draft,  diminution  shall  be  made,  so  as  to  affect  the  Magistracy- 
existing  at  the  time  of  the  increase  or  diminution ;  to 
be  ineligible  a  second  time ;  and  that,  besides  a  general 
authority  to  execute  the  National  laws,  it  ought  to  enjoy 
the  executive  rights  vested  in  Congress  by  the  confedera- 
tion. 

8.  Eesolved,  that  the  executive,  and  a  convenient 
number  of  the  national  Judiciary,  ought  to  compose  a 
Council  of  revision,  with  authority  to  examine  every  act 
of  the  National  Legislature,  before  it  shall  operate,  and 
every  act  of  a  particular  Legislature  before  a  negative 
thereon  shall  be  final ;  and  that  the  dissent  of  the  said 
Council  shall  amount  to  a  rejection,  unless  the  act  of  the 
National  Legislature  be  again  passed,  or  that  of  a  par- 
ticular Legislature  be  again  negatived  by  of  the 
Members  of  each  branch, 

9.  Eesolved,  that  a  National  Judiciary  be  established 
to  hold  their  offices  during  good  behaviour,  and  to  receive 
punctually,  at  stated  times,  j&xed  compensation  for  their 
services,  in  which  no  increase  or  diminution  shall  be 
made,  so  as  to  affect  the  persons  actually  in  office  at  the 
time  of  such  increase  or  diminution.  That  the  jurisdic- 
tion of  the  Inferior  Tribunals,  shall  be,  to  hear  and 
determine,  in  the  first  instance,  and  of  the  Supreme  tri- 
bunal to  hear  and  determine,  in  the  denier  resort, 

all  piracies  and  felonies  on  the  high  seas ;  captures 
from  an  enemy ;  cases  in  which  foreigners,  or  Citi- 
<  zens  of  other  States,  applying  to  such  jurisdictions 
may  be  interested,  or  which  respect  the  Collection 
of  the  National  Revenue ;  impeachments  of  any 
National  officer ;  and  questions  which  involve  the 
National  peace  or  harmony. 

10.  Resolved,  that  provision  ought  to  be  made  for  the 
admission  of  States,  lawfully  arising  within  the  limits  of 
the  United  States,  whether  from  a  voluntary  junction  of 
government  and  territory,  or  otherwise,  with  the  consent 
of  a  number  of  voices  in  the  National  Legislatures  less 
than  the  whole. 

11.  Resolved,  that  a  Republican  Government,  and  the 


Randolph's  draft.  731 

territory  of  each  state  (except  in  the  instance  of  a  vol-  Appendix, 
untaiy  junction  of  Government  and  territory)  ought  to  i*a"'l'^lpl'  ^  I'r^ift. 
be  guaranteed  by  the  United  States  to  each  State. 

12.  Resolved,  that  provision  ought  to  be  made  for  the 
continuance  of  a  Congress,  and  their  authorities  and 
privileges,  until  a  given  day,  after  the  reform  of  the 
Articles  of  Union  shall  be  adopted,  and  for  the  comple- 
tion of  all  their  engagements. 

13.  That  provision  ought  to  be  made  for  the  amend- 
ment of  the  articles  of  Union,  whensoever  it  shall  seem 
necessary ;  and  that  the  assent  of  the  National  Legisla- 
ture ought  not  to  be  required  thereto. 

14.  Kesolved,  that  the  Legislative,  Executive,  and 
Judiciary  powers  within  the  several  States  ought  to  be 
bound  by  oath  to  support  the  articles  of  Union. 

15.  Resolved,  that  the  Amendments,  which  shall  be 
offered  to  the  Confederation  by  the  Convention,  ought, 
at  a  proper  time  or  times,  after  the  approbation  of  Con- 
gress, to  be  submitted  to  an  assembly  or  assemblies  of 
representatives,  recommended  by  the  several  Legisla- 
tures, to  be  expressly  chosen  by  the  people  to  consider 
and  decide  thereon. 

UNITED  STATES  OF  AMERICA. 

DEPARTMENT    OF    STATE. 

To  all  to  whom  these  presents  shall  come,   Greeting: 

I  certify  That  the  document  hereto  annexed  is  a  true  copy, 
from  the  Archives  of  this  Department,  of  Randolph's  resolutions 
of  May  29,  1787,  as  found  among  the  papers  of  David  Brearley, 
one  of  the  members  of  the  Convention,  furnished  by  his  execu- 
tor General  Bloonifield. 

In  testimony  whereof  T,  William  F.  Wharton,  Acting 
Secretary  of  State  of  the  United  States,  have  here- 
unto subscribed  my  name  and  caused  the  seal  of  the 
[seal.]     Department  of  State  to  be  affixed. 

Done  at  the  City  of  Washington,  this  12th  day  of 
June,  A.D.,  1891,  and  of  the  Independence  of  the 
United  States  of  America  the  one  hundred  and  fif- 
teenth. 

William  F.  Wharton. 


732  APPENDIX. 

IV. 

THE  PINCKNEY  PLAN, 

Submitted  May  29,  1787. 

Appendix.  We  the  people  of  the  States  of  New  Hampshire,  Massa- 

Pinckney's  Draft,  chusetts,  Rhode  Island  &  Providence  Plantations,  Con- 
necticut, New  York,  New  Jersey,  Pensylvania,  Delaware, 
Maryland,  Virginia,  North  Carolina,  South  Carolina,  and 
Georgia,  do  ordain,  declare,  and  establish  the  following 
constitution  for  the  Government  of  ourselves  and  pos- 
terity. 

Article  1. 

The  Stile  of  this  Government  shall  be  the  United 
States  of  America,  and  the  Government  shall  consist  of 
supreme  legislative,  Executive  and  judicial  powers. 

2. 
The  Legislative  power  shall  be  vested  in  a  Congress, 
to  consist  of  two  separate  Houses ;  one  to  be  called  the 
House  of  Delegates ;  and  the  other  the  Senate,  who  shall 
meet  on  the        day  of  in  every  year. 

3. 

The  Members  of  the  House  of  Delegates  shall  be  chosen 
every  year  by  the  people  of  the  several  States ;  and 
the  qualification  of  the  electors  shall  be  the  same  as 
those  of  the  electors  in  the  several  States  for  their  Legis- 
latures. Each  member  shall  have  been  a  citizen  of  the 
United  States  for  years ;  shall  be  of  years  of  age, 
and  a  resident  in  the  State  he  is  chosen  for  until  a  cen- 
sus of  the  people  shall  be  taken  in  the  manner  herein 
after  mentioned.  The  House  of  Delegates  shall  consist 
of  to  be  chosen  from  the  different  States  in  the  fol- 
lowing proportions :  Eor  New  Hampshire  for  Massa- 
chusetts, for  Rhode  Island,  for  Connecticut 
for  New  York,  for  New  Jersey,  for  Pensylvania, 
for  Delaware,        for  Maryland,         for  Virginia, 


PINCKNEY  S    DRAFT.  7o.3 

for  North  Carolina,  for  South  Carolina,  for  Geor-  Appendix, 
gia,  and  the  Legislature  shall  hereafter  regulate  the  i'^^^kney's  Draft, 
number  of  Delegates  by  the  number  of  inhabitants,  accord- 
ing to  the  provisions  herein  after  made,  at  the  rate  of  one 
for  every  Thousand.  All  money  Bills  of  every  kind 
shall  originate  in  the  House  of  Delegates,  and  shall  not 
be  altered  by  the  Senate.  The  House  of  Delegates  shall 
exclusively  possess  the  power  of  impeachment,  and  shall 
choose  its  own  officers ;  and  vacancies  therein  shall  be 
supplied  by  the  Executive  authority  of  the  State  in  the 
representation  from  which  they  shall  happen. 

4. 

The  Senate  shall  be  elected  and  chosen  by  the  House 
of  Delegates  ;  which  House,  immediately  after  their 
meeting,  shall  choose  by  ballot  Senators  from  among 
the  Citizens  and  residents  of  Xew  Hampshire,  from 
among  those  of  Massachusetts,  from  among  those  of 
Rhode  Island,  from  among  those  of  Connecticut, 
from  among  those  of  New  York,  fronv  among  those 
of  New  Jersey,         from   among  those  of  Pensylvania, 

from  among  those  of  Delaware,  from  among 
those  of  Maryland,  from  among  those  of  Virginia, 

from  among  those  of  North  Carolina,  from  among 
those  of  South  Carolina,  from  among  those  of  Geor- 
gia—  The  Senators  chosen  from  New  Hampshire, 
Massachusetts,  Rhode  Island  and  Connecticut,  shall  form 
one  class ;  those  from  New  York,  New  Jersey,  Pensyl- 
vania, and  Delaware,  one  Class ; and  those  from 

Maryland,  Virginia,  North  Carolina,  South  Carolina,  & 
Georgia,  one  class.  The  House  of  Delegates  shall 

number  these  classes  one,  two,  and  three  ;  and  fix  the 
times  of  their  service  by  Lot.  The  first  class  shall  serve 
for  years ;  the  second  for  years  ;  &  the  third 
for  years.  As  their  times  of  service  expire,  the 
House  of  Delegates  shall  fill  them  up  by  Elections  for 

years ;  and  they  shall  fill  all  vacancies  that  arise 
from  Death,  or  resignation,  for  the  time  of  service  re- 
maining of  the  Members  so  dying  or  resigning.  Each 
Senator  shall  be        years  of  age  at  least ;  shall  have  been 


734  APPENDIX. 

Appendix.  a  Citizen  of  the  United  States    ^     years  before  his  elec- 

^  ■  tion ;  and  shall  be  a  resident  of  the  State  he  is  chosen 

from.  The  Senate  shall  choose  its  own  Ofi&cers 


5. 

Each  State  shall  prescribe  the  time  and  manner  of 
holding  elections  by  the  people  for  the  House  of  Dele- 
gates ;  and  the  House  of  Delegates  shall  be  the  judges 
of  the  Elections,  returns,  and  qualifications  of  their 
Members. 

In  each  House  a  Majority  shall  constitute  a  quorum  to 
do  business.  Freedom  of  Speech  and  Debate  in  the 
Legislature  shall  not  be  impeached,  or  questioned,  in 
any  place  out  of  it ;  and  the  members  of  both  Houses 
shall  in  all  cases,  except  for  Treason,  felony,  or  breach  of 
the  Peace,  be  free  from  arrest  during  their  attendance  of 
Congress,  and  in  going  to  and  returning  from  it.  Both 
Houses  shall  keep  Journals  of  their  proceedings,  and 
publish  them,  except  on  Secret  occasions ;  and  the  yeas 
and  nays  may  be  entered  thereon  at  the  desire  of  one- 
of  the  Members  present.  Neither  House,  without 
xthe  consent  of  the  other,  shall  adjourn  for  more  than 
days,  nor  to  any  place  but  where  they  are  sitting 

The  Members  of  each  house  shall  not  be  eligible  to,  or 
capable  of  holding  any  office  under  the  Union,  during 
the  time  for  which  they  have  been  respectively  elected, 
nor  the  Members  of  the  Senate  for  one  year  after.  The 
Members  of  each  House  shall  be  paid  for  their  services 
by  the  States  which  they  represent.  Every  Bill,  which 
shall  have  passed  the  Legislature,  shall  be  presented  to 
the  President  of  the  United  States  for  his  revision ;  if 
he  approves  it  he  shall  sign  it ;  but  if  he  does  not  ap- 
prove it,  he  shall  return  it,  with  his  objections,  to  the 
House  it  originated  in ;  which  House,  if  two-thirds  of 
the  Members  present,  notwithstanding  the  President's 
objections,  agree  to  pass  it,  shall  send  it  to  the  other 
House,  with  the  President's  objections ;  where,  if  two- 
thirds  of  the  Members  present  also  agree  to  pass  it,  the 
same  shall  become  a  law ;  and  all  bills  sent  to  the  Presi- 


pinckney's  draft.  735 

dent,  and  not  returned  by  him  within         days,  shall  he  Appendix. 
Laws,   unless   the    Legislature,    by   their   adjournment,  ^''"^'^'"^y''*^*'"''''- 
prevent  their  return;  in  which  case  they  shall  not  be 
laws. 

6. 

The  Legislature  of  the  United  States  shall  have  the 

power  to  lay  and  collect  taxes,  duties,  imposts  and  ex- 
cises ;  To  regulate  commerce  with  all  Nations  and  among 

the  several  States  :  — 

To  borrow  money  and  emit  bills  of  credit ; 

To  establish  post  offices  ; 

To  raise  Armies ; 

To  build  and  equip  Fleets  ; 

To  pass  laws  for  Arming,  organizing  and  disciplining  the 
Militia  of  the  United  States  ; 

To  subdue  a  rebellion  in  any  State,  on  application  of 
is  Legislature ; 

To  coin  Money,  &  regulate  the  value  of  all  coins,  and  fix 
the  standard  of  weights  and  measures  ; 

To  provide  such  Dock  yards  and  arsenals,  and  erect  such 
Fortifications  as  may  be  necessary  for  the  United  States, 
and  to  exercise  exclusive  jurisdiction  therein ; 

To  appoint  a  Treasurer,  by  ballot ; 

To  constitute  Tribunals  inferior  to  the  Supreme  Court; 

To  establish  Post  &  INIilitary  roads ; 

To  establish  and  provide  for  a  National  University  at 
the  seat  of  the  Government  of  the  United  States ; 

To  establish  uniform  rules  of  Naturalization ; 

To  provide  for  the  establishment  of  a  seat  of  Govern- 
ment for  the  United  States,  not  exceeding  miles 
square,  in  which  they  shall  have  exclusive  jurisdiction  ; 

To  make  rules  concerning  captures  from  an  Enemy ; 

To  declare  the  Law  and  punishment  of  piracies  and  fel- 
onies at  Sea,  and  of  counterfeiting  Coin,  and  of  all 
offences  against  the  Laws  of  Nations ; 

To  call  forth  the  aid  of  the  Militia  to  execute  the  laws 
of  the  Union,  enforce  Treaties,  suppress  insurrections, 
&  repel  invasions  ; 

And  to  make  all  laws  for  carrying  the  foregoing  powers 
into  execution. 


736  APPENDIX. 

Appendix.  The  Legislature  of  the  United  States  shall  have  the 

Piuckney's  Draft,  power  to  declare  the  punishment  of  treason,  which  shall 
consist  only  in  levying  War  against  the  United  States, 
or  any  of  them,  or  in  adhering  to  their  Enemies.  No 
person  shall  be  convicted  of  Treason  but  by  the  Testi- 
mony of  two  Witnesses. 

The  proportion  of  direct  Taxation  shall  be  regulated 
by  the  whole  number  of  inhabitants  of  every  description ; 
which  number  shall,  within  years  after  the  first  meet- 
ing of  the  Legislature,  and  within  the  term  of  every 
year  after,  be  taken  in  the  manner  to  be  prescribed  by 
the  Legislature 

No  Tax  shall  be  laid  on  articles  exported  from  the 
States ;  nor  capitation  Tax,  but  in  proportion  to  the 
census  before  directed. 

All  Laws  regulating  commerce  shall  require  the  assent 
of  two  thirds  of  the  Members  present  in  each  House. 

The  United  States  shall  not  grant  any  title  of  Nobility. 

The  Legislature  of  the  United  States  shall  pass  no 
Law  on  the  subject  of  Religion;  nor  touching  nor  abridg- 
ing the  Liberty  of  the  press ;  nor  shall  the  privilege  of 
the  writ  of  Habeas  Corpus  ever  be  suspended,  except  in 
case  of  Eebellion  or  invasion. 

All  acts  made  by  the  Legislature  of  the  United  States, 
pursuant  to  this  Constitution,  and  all  Treaties  made 
under  the  authority  of  the  United  States,  shall  be  the 
supreme  Law  of  the  Land;  and  all  Judges  shall  be 
bound  to  consider  them  as  such  in  their  decisions. 


The  Senate  shall  have  the  sole  and  exclusive  power  to 
declare  War ;  and  to  make  Treaties ;  and  to  appoint 
Ambassadors  and  other  Ministers,  to  Foreign  Nations ; 
and  Judges  of  the  Supreme  Court. 

They  shall  have  the  exclusive  power  to  regulate  the 
Manner  of  deciding  all  disputes  and  controversies  now 
subsisting  or  which  may  arise,  between  the  States,  re- 
specting Jurisdiction  or  territory. 


pinckney's  draft.  737 


The  Executive  power  of  the  United  States  shall  be  Appendix, 
vested  in  a  President  of  the   United  States  of  America,  I'iuckney'a  Umft. 
which  shall  be  his  Stile ;  and  his  title  shall  be  His  Ex- 
cellency.    He  shall  be  elected  for        years ;  antl  shall 
reeligible. 

He  shall  from  time  to  time  give  information  to  the 
Legislature,  of  the  State  of  the  Union,  and  recommend 
to  their  consideration  the  measures  he  may  think  neces- 
sary. He  shall  take  care  that  the  Laws  of  the  United 
States  be  duly  executed.  He  shall  commission  all  the 
officers  of  the  United  States ;  and,  except  as  to  Ambas- 
sadors, other  Ministers,  and  Judges  of  the  Supreme 
Court,  he  shall  nominate,  and,  with  the  consent  of  the 
Senate,  appoint,  all  other  officers  of  the  United  States. 
He  shall  receive  publick  Ministers  from  Foreign  Nations; 
and  may  correspond  with  the  Executives  of  the  different 
States.  He  shall  have  power  to  grant  pardons  and  re- 
prieves, except  in  impeachments.  He  shall  be  com- 
mander in  chief  of  the  Army  and  Navy  of  the  United 
States,  and  of  the  Militia  of  the  several  States;  and 
shall  receive  a  compensation  which  shall  not  be  increased 
or  diminished  during  his  continuance  in  office.  At  en- 
tering on  the  duties  of  his  office,  he  shall  take  an  oath 
faithfully  to  execute  the  duties  of  a  President  of  the 
United  States.  He  shall  be  removed  from  his  office  on 
impeachment  by  the  House  of  Delegates,  and  conviction 
in  the  Supreme  Court,  of  Treason,  bribery,  or  corruption. 
In  case  of  his  removal.  Death,  resignation,  or  disability, 
the  President  of  the  Senate  shall  exercise  the  duties  of 
his  office  until  another  President  be  chosen,  and  in  case 
of  the  Death  of  the  President  of  the  Senate,  the  Speaker 
of  the  House  of  Delesrates  shall  do  so. 


The  Legislature  of  the  United  States  shall  have  the 
power,  and  it  shall  be  their  duty,  to  establish  such  Courts 
of  Law,  Equity  &  admiralty,  as  shall  be  necessary. 
The  Judges  of  the  Courts  shall  hold  their  offices  during 


738  APPENDIX. 

Appendix.  good  behavior ;  and  receive  a  compensation  which  shall 

Pinckney's  Draft.  ^^^^^  jjg  increased  or  diminished  during  their  continuance 
in  office.  One  of  these  Courts  shall  be  termed  the  Su- 
preme Court,  whose  jurisdiction  shall  extend  to  all  cases 
arising  under  the  Laws  of  the  United  States,  or  affecting 
A-bassadors,  other  publick  Ministers  and  Consuls;  to 
the  trial  of  impeachment  of  officers  of  the  United  States; 
to  all  cases  of  admiralty  &  Maritime  jurisdiction.  In 
cases  of  impeachment  affecting  Ambassadors,  and  other 
publick  Ministers,  this  jurisdiction  shall  be  original; 
and  in  all  the  other  cases  appellate. 

All  Criminal  offences  (except  in  cases  of  impeachment) 
shall  be  tried  in  the  State  where  they  shall  be  committed. 
The  trials  shall  be  open  &  publick,  and  be  by  Jury. 

10. 

Immediately  after  the  first  Census  of  the  people  of  the 
United  States,  the  House  of  Delegates  shall  apportion 
the  Senate  by  electing  for  each  State,  out  of  the  Citizens 
resident  therein,  one  Senator  for  every  Members  such 
State  shall  have  in  the  House  of  Delegates.  Each  State 
shall  be  entitled  to  have  at  least  one  Member  in  the 
Senate. 

11. 

No  State  shall  grant  Letters  of  Marque  &  reprisal, 
or  enter  into  treaty,  or  alliance,  or  Confederation ;  nor 
grant  any  title  of  Nobility ;  nor,  without  the  consent  of 
the  Legislature  of  the  United  States,  lay  an}^  Impost  on 
imports ;  nor  keep  Troops  or  Ships  of  War  in  time  of 
Peace ;  nor  enter  into  compacts  with  other  States  or 
Foreign  Powers,  or  emit  P)ills  of  Credit,  or  make  any 
thing  but  Gold,  Silver  or  Copper,  a  tender  in  payment 
of  debts  ;  nor  engage  in  War,  except  for  self  defence 
when  actually  invaded,  or  the  danger  of  invasion  is  so 
great  as  not  to  admit  of  a  delay,  until  the  Government 
of  the  United  States  can  be  informed  thereof.  And  to 
render  these  prohibitions  effectual,  the  Legislature  of 
the  United  States  shall  have  the  power  to  revise  the 
Laws  of  the  several    States   that  may  be  supposed  to 


pinckney's  dkaft.  739 

infringe  the  powers  exclusively  delegated  by  this  Con-  Appendix, 
stitution  to  Congress,  and  to  negative  and  annul  such  as  E*«nt;kuey's  Draft, 
do. 

12. 

The  Citizens  of  each  State  shall  be  entitled  to  all  priv- 
ileges and  immunities  of  Citizens  in  the  several  States. 
Any  person,  charged  with  crimes  in  any  State,  fleeing 
from  justice  to  another,  shall,  on  demand  of  the  Execu- 
tive of  the  State  from  which  he  Fled,  be  delivered  up, 
and  removed  to  the  State  having  jurisdiction  of  the 
offence. 

13. 

Full  faith  shall  be  given,  in  each  State,  to  the  acts  of 
the  Legislature  and  to  the  records  and  judicial  proceed- 
ings of  the  Courts  and  Magistrates  of  every  State. 

14. 

The  Legislature  shall  have  power  to  admit  New  States 
into  the  Union  on  the  same  terms  with  the  original 
States ;  provided  two  thirds  of  the  Members  present  in 
both  Houses  agree. 

15. 

On  the  application  of  the  Legislature  of  a  State,  the 
United  States  shall  protect  it  against  domestick  insur- 
rection. 

16. 

If  two  thirds  of  the  Legislatures  of  the  States  apply 
for  the  same,  the  Legislature  of  the  United  States  shall 
call  a  Convention  for  the  purpose  of  amending  the  Con- 
stitution :  Or,  Should  Congress,  with  the  consent  of  two 
thirds  of  each  House,  propose  to  the  States  amendments 
to  the  same,  the  agreement  of  two  thirds  of  the  Legis- 
latures of  the  States  shall  be  sufficient  to  make  the  said 
amendments  parts  of  the  Constitution. 

The  Ratification  of  the  Conventions  of 

States  shall  be  sufficient  for  organizing  this  Constitution. 


740  APPENDIX. 


UNITED   STATES   OF   AMERICA. 

BKPARTMENT    OF    STATE. 

Appendix.  To  all  to  whom  these  presents  shall  come,  Greeting : 

Pinckiiey's  Draft.  j  ^^^^^^^^  r^^^^^  the  document  hereto  annexed  is  a  true  copy, 
from  the  Archives  of  this  Department,  of  Pinckney's  plan  of 
government  of  May  29,  1787,  as  furnished  by  himself  for  pub- 
lication under  the  Resolution  of  Congress  of  March  27,  1818, 
directing  the  publication  and  distribution  of  the  Journal  and 
proceedings  of  the  Convention  which  formed  the  Constitution 
of  the  United  States. 

In  testimony  whereof  I,  William  F.  Wharton,  Acting 
Secretary  of  State  of   the  United  States,  have  here- 
unto subscribed  my  name  and  caused  the  seal  of  the 
[seal.]     Department  of  State  to  be  affixed. 

Done  at  the  City  of  Washington,  this  12th  day  of 
June,  A.D.,  1891,  and  of  the  Independence  of  the 
United  States  of  America  the  one  hundred  and  fif- 
teentli. 

William  F.  Wharton. 


INDEX. 


ACCUSED  PARTIES 

cannot  be  tried  for  a  crime  not  stated  in  the  Indictment,  609. 
have  a  right  to  be  confronted  witli  tlie  witnesses,  509. 
and  to  compulsory  process  to  secure  their  attendance,  510. 

ACTIVE,  THE 
case  of,  42. 

ADMIRALTY   AND   MARITIME   JURISDICTION.     [See  Colonial  Admiralty 

Courts :  Prize  Courts  of  the  Revolution.'] 
early  exercise  of,  more  limited  than  now,  132. 
its  extension,  110,  133. 
this  extension  constitutional,  134. 
extent  of  it  under  the  Constitution,  326. 

ADMISSION   OF   NEW   STATES,  131. 

ALIENS.     [See  Citizenship :  Naturalization.'} 

AMBASSADORS.     [See  Citizenship.] 

jurisdiction  of  the  Supreme  Court  over  cases  affecting,  325,  361. 
evidence  in  support  of  a  claim  to  this  right,  362,  426. 

AMENDMENTS   TO   THE   CONSTITUTION 
the  first  ten  amendments,  91. 
unratified  articles,  91  n. 

eleventh  amendment,  92  n.,  331  n.,  363,  379,  423,  652. 
twelfth  amendment,  149,  653. 
thirteenth  amendment,  406,  653. 
fourteenth  amendment,  407,  653. 
fifteenth  amendment,  408,  653. 
whether  a  ratification  once  given  can  be  withdrawn,  642,  653. 

AMPHICTYONIC   COUNCILS 
not  a  federal  government,  78  n. 

ANNAPOLIS,  CONVENTION   OF 

convened  through  the  action  of  Virginia,  6. 

APPOINTMENT.     [See  Seyiate.'j 

where  the  power  of  appointment  is  vested,  156. 
the  annoyance  it  caused  to  Washington,  177. 

741 


742  INDEX. 

APPORTIONMENT 

of  representation  under  the  Constitution,  677. 

APPROPRIATION   BILL 

distinction  between  it  and  a  revenue  bill,  204. 

ARBITRARY  ARRESTS.     [See  Fifth  Amendment.'] 
ARMS.     [See  Second  Amendment.] 

ARMY 

the  President  the  commander-in-chief,  162. 

Congress  has  the  power  to  raise  armies,  624. 

no  appropriation  therefor  to  be  longer  than  for  two  years,  624. 

ARTICLES   OF   CONFEDERATION.     [See  Bancroft,  George.] 
how  made,  3. 

the  weakness  of  Congress  under  them,  21,  82,  101. 
when  adopted,  42. 
causes  which  led  to  a  change,  5,  74. 
Madison's  views  concerning  them,  75  n.,  76  n.,  77  n. 

ASSESSMENT 

an  assessment  is  not  a  contract  within  the  Constitution,  572. 

ATTAINDER 

as  exercised  in  England,  105,  584. 

neither  Federal  nor  State  governments  can  pass  a  bill  of,  585. 
nor  can  it  be  effected  by  judicial  sentence  beyond  the  offender's  lifetime, 
585,  600. 

AUTHOR.     [See  Copyright.] 

BAIL 

excessive  shall  not  be  required,  649. 

BANCROFT,    GEORGE 

his  remarks  on  the  Convention  which  framed  the  Constitution,  31. 

his  plea  for  the  Constitution,  139. 

his  remarks  on  the  citizenship  provision  in  the  Articles  of  Confederation,  298. 

upon  the  circulating  medium  before  the  Constitution,  525. 

account  of  the  Constitutional  provision  respecting  contracts,  527. 

BANK  NOTES.     [See  Bills  of  Credit.] 

BANK   OF   THE   UNITED    STATES 
its  constitutionality,  389. 
its  exemption  from  State  taxation,  389. 

BANKRUPTCY 

power  to  enact  uniform  laws  respecting,  615. 
statutes  enacted,  616. 

BILLS   OF   ATTAINDER.     [See  Attainder.] 


INDEX.  743 


BILLS   OF  CREDIT.     [See  Legal  Tender. -\ 
defined,  524,  581. 

may  be  emitted  by  the  United  States,  583. 
but  not  by  tlie  States,  617. 
State  bank  notes  are  not  bills  of  credit,  583. 

BLAIR,   JUSTICE 

his  opinion  in  Penhalloio  v.  Doane,  125. 

BREACH  OF  THE  PEACE 

of  the  United  States  as  distinguished  from  that  of  a  State,  429. 

BRIDGES.     [See  Begulation  of  Commerce.'] 

BRITISH  CONSTITUTION 

described  by  Blackstone  as  a  despotic  form  of  government,  62  n. 
powers  of  the  sovereign  are  curtailed,  65. 
Macaulay's  view  of  it,  66  n.,  67  n. 

BUDGET,   THE 

the  English  term  for  a  revenue  bill,  207,  218. 

BURIAL 

right  of  decent  burial  guaranteed  by  treaties,  53. 

CABINET  OFFICERS.     [See  Executive  Departments.} 

CALIFORNIA 

treaty  ceding  it,  224. 

CHASE,    CHIEIk  JUSTICE 

his  opinion  in  Hepburn  v.  Grisicold,  135,  142. 
dissenting  opinion  in  Knox  v.  Lee,  136. 

CHASE,   JUSTICE 

his  opinion  in  Calder  v.  Bidl,  586. 

CHINA.     [See  Fourteenth  Amendment.] 
a  type  of  absolute  monarchy,  62. 

CHURCH   AND    STATE 

their  amalgamation  forbidden  by  the  Constitution,  645. 

CITIZEN.     [See  Citizenship:  Naturalization.] 

CITIZENSHIP.     [See  Fourteenth  Amendment :  Naturalization.] 
definition  of  it,  27G. 

the  Fourteenth  Amendment  defines  it,  278. 
when  children  of  ambassadors  born  here  are  not  citizens,  279. 
the  negro  a  citizen,  but  not  the  Indian,  280. 
citizenship  is  exclusive  of  sex,  280. 
diflference  between  American  citizenship  and  the  feudal  relation  to  the  head 

of  the  State,  297,  298. 
how  American  citizenship  diflers  from  Roman  citizensliip,  298. 


744  INDEX. 

CITIZENSHIP.—  Continued. 

Articles  of  Confederation  established  interstate  citizenship,  298. 
right  of  suffrage  not  a  privilege  or  immunity  of  citizenship,  661. 
an  Indian  not  a  citizen,  662. 

CIVIL  RIGHTS.     [See  Fifteenth  Amendment.'\ 

COINING   MONEY,   THE   POWER   OF 

is  forbidden  to  the  States,  but  granted  to  the  United  States,  581,  617. 

COLONIAL   ADMIRALTY   COURTS 

they  disappeared  with  the  vanishing  of  British  dominion,  38,  39  n. 

COLONIAL  CHARTERS 

they  were  the  earliest  constitutions,  67. 

COLONIES 

they  never  were  independent  States,  36,  75. 

COLORED  PERSONS.     [See  Thirteenth  Amendment :  Fifteenth  Amendment.'] 

COMMANDER-IN-CHIEF 

the  President  is  commander-in-chief,  162. 

COMMERCE.  [See  Indian  Tribes:  Interstate  Commerce:  Regulation  of  Commerce.'] 
definition  of  commerce,  446-449. 
railroads  are  an  element  in  it,  448. 
transportation  upon  them  between  States  is  commerce,  476- 

COMMERCIAL   TREATIES 

have  not  been  regarded  with  favor  by  the  House  of  Representatives,  225. 
indications  of  a  change  of  opinion,  226. 

COMMON   CARRIER.     \_See  liailroads :  liegulation  of  Commerce.'] 

COMMON  LAW.     [See  Tnal  by  Jury.'] 

extent  of  Fedei'al  jurisdiction  in  cases  at  common  law,  317. 

COMPACTS   BETWEEN   STATES 
forbidden  by  the  Constitution,  578. 

COMPENSATION 

of  the  President  not  to  be  increased  or  diminished  during  his  term,  153. 
of  Federal  judges  not  to  be  diminished  during  their  term  of  office,  154. 

CONCURRENT   POWERS.     [See  Regulation  of  Commerce.] 

CONFRONTED   WITH   WITNESSES.     [See  Accused  Parties.] 

CONGRESS.    [See  Horise  of  Representatives :  Senate:  Taxation.'] 
first  assumed  national  powers  in  1775,  36. 
became  the  executive  of  the  new  nation,  37. 
its  construction  of  its  inherent  powers,  57. 
increases  in  importance  as  the  country  grows,  95. 
its  organization  under  the  Constitution,  191. 
separate  powers  of  each  house,  192. 


INDEX.  745 

CONGRESS.  —  Continued. 

qualifications  of  members,  192. 

power  to  compel  atteiulance  of  members,  194, 

power  of  each  house  to  make  rules,  194. 

power  to  punish  members  for  disorderly  behavior,  195. 

each  house  required  to  keep  a  journal,  196. 

call  of  the  yeas  and  nays,  197. 

limitation  of  power  of  separate  adjournment,  197. 

CONQUERED   TERRITORY 

revenue  laws  suspended  in  conquered  territory  of  the  United  States,  264. 
conquered  by  the  United  States  remains  foreign  territory  for  revenue  pur- 
poses, 264. 

CONSTITUTION    OF    THE    UNITED    STATES.      [See    Construction   of  the 
Constil7Uion.'] 
the  convention  called  which  framed  it,  7. 
proceedings  in  the  convention,  8. 
ratification  and  adoption  of  the  Constitution,  9. 
the  objections  urged  against  it,  12,  90. 
its  success,  27. 

the  outcome  of  previous  history,  35. 
the  best  form  of  government  yet  devised,  59,  62. 
definition  of  a  constitution,  60,  66,  71. 
de  Tocqueville's  opinion  of  it,  68  n. 
previous  attempts  at  written  constitutions,  69. 
causes  which  led  to  its  adoption,  75. 
objections  urged  against  its  adoption,  90. 
a  knowledge  of  it  essential  to  a  lawyer,  107. 
when  a  case  arises  under  it,  320. 
it  is  founded  upon  English  law,  486. 
recognizes  the  separation  between  law  and  equity,  488. 
supremacy  of  the  Constitution,  G43. 

CONSTRUCTION   OF   THE    CONSTITUTION 

federal  and  States'  rights  principles  of  construction,  22,  117. 

an  understanding  of  the  causes  which  led  to  it  a  key,  35,  37,  82,  100. 

difficulties  of  interpretation,  98,  99. 

executive  construction,  98. 

judicial  construction  — how  far  to  be  followed,  98  n.,  99,  117,  119,  140. 

to  be  interpreted  like  a  remedial  statute,  102. 

and  with  reference  to  the  nature  of  the  new  government,  102. 

doctrine  of  implied  powers,  128,  141,  651. 

the  tenth  amendment,  651. 

CONTEMPT.     [See  House  of  Representatives :  Trial  by  Jury.] 

CONTESTED   ELECTIONS 

each  house  the  judge  of  as  to  its  own  members,  193. 


746  INDEX. 

CONTINENTAL   CONGRESS 

was  both  an  executive  and  a  legislative  body,  37.  , 

a  review  of  some  of  its  doings,  37-56. 

CONTRACTS.      [See   Corporation :   Impairment  of  the  Obligation  of  Contracts : 
Police  Power  of  the  States.'] 
municipal  power  of  taxation  enters  into  contracts  of  a  municipality,  273, 

567,  568. 
an  act  of  incorporation  may  be  a  contract  on  the  part  of  the  State,  391. 
States  may  contract  by  legislation,  393. 

existing  State  laws  and  remedies  enter  into  contracts,  531,  567. 
obligations  of  a  contract  defined,  539,  540. 
what  a  contract  is,  554. 

classification  of  contracts  adjudicated  hi  the  Supreme  Court,  558. 
what  is  not  a  municipal  contract,  566. 
a  law  affixing  a  salary  to  a  public  office  constitutes  a  contract,  568. 

COPYRIGHT 

grant  of  power  to  Congress  to  protect,  620. 
the  exercise  of  that  power,  620  n. 

CORPORATION.     [See  Contract.'] 

its  interstate  commerce  protected  from  unconstitutional  exactions,  476. 
the  Dartmouth  College  decision,  532. 
reservation  clauses  in  charters,  533. 

is  a  citizen  within  the  meaning  of  the  Fourteenth  Amendment,  662. 
a  State  may  impose  conditions  upon  a  foreign  corporation  doing  business 
within  it,  669. 

COUNTERFEITING 

the  federal  power  to  punish  does  not  prevent  a  State  from  punishing,  618. 

COURTS   OF   THE   UNITED   STATES 
created  for  judicial  purposes  only,  351. 

CRIMES.     [See  Acmsed  Parties.] 

CRUEL   AND   UNUSUAL   PUNISHMENTS 
provisions  respecting,  whence  derived,  649. 
execution  by  electricity  not  one,  649. 

CUSHING,  JUSTICE 

his  opinion  in  Penhallow  v.  Doane,  126. 

DARTMOUTH   COLLEGE   CASE 
described,  391. 
took  the  country  by  surprise,  557. 

DEMOCR.\CY 

definition  of  it,  61. 

the  United  States  not  a  democracy,  84. 

DEPARTMENTS  OF   GOVERNMENT.     [See  Execntive  Departments.'} 


INDEX.  747 

DIPLOMATIC   PRIVILEGE.     [See  Ambassadors.'] 

DIRECT    TAX 

what  is  and  what  is  not  a  direct  tax,  236. 
legislation  respecting,  628,  029. 

DISTRICT   OF   COLUMBIA 

power  of  Congress  to  tax,  2(13. 

relation  of  the  Federal  Government  to  it,  626. 

DIVISION   OF   POWERS   OF   GOVERNMENT 

into  legislative,  executive,  and  judicial,  25,  87,  148,  310,  375,  574. 
they  are  co-ordinate  in  dignity,  89. 

DROIT    D'AUBAINE 

the  right  of  yielded  in  several  early  treaties,  50. 

DRUMMER'S   LICENSE   TAX 

when  such  a  tax  is  unconstitutional,  483. 

DUE   PROCESS   OF    LAW 

definition  of  it,  064. 

lands  talvcn  by  judicial  proceedings  for  overflow  by  a  mill-dam  are  taken  by 
due  process  of  law,  666. 

a  law  taxing  property  which  affords  the  owner  an  opportunity  to  contest  it, 
does  not  take  his  property  without  due  process  of  law,  606. 

the  compulsory  drainage  of  swamplands  at  the  common  cost  of  all  propri- 
etors does  not  take  the  property  of  objectors  witliout  due  process,  667. 

DUTIES   AND   IMPOSTS 

purposes  for  which  they  may  be  imposed,  231. 
uniformity  in,  209,  242,  264. 

DUTY   ON   EXPORTS 

what  it  is,  592. 

EIGHTH  AMENDMENT.     [See  Bail :  Cruel  and  Unusual  Punishinents :  Pines.] 

ELECTION 

of  President,  149,  152. 

ELEVENTH  AMENDMENT 

caused  by  the  decision  in  Chisholm  v.  Georgia,  379,  652. 

ELIGIBILITY   TO    OFFICE 
of  President,  153. 

ELLSWORTH,    OLIVER 

his  speech  on  the  adoption  of  the  Constitution,  436. 

EMANCIPATION 

how  brought  about,  406. 

EQUAL  PROTECTION  OF   THE  LAWS.     [See  Fourteenth  Amendment.] 


748  INDEX. 

EQUITY.     [See  Local  Law.'] 

jurisdiction  extended  by  State  laws,  317,  357,  521. 

EXECUTIVE 

Congress  was  the  Executive  up  to  1789,  37. 

ministerial  duties  may  be  enforced  by  mandamus,  385,  387,  424. 

EXECUTIVE  DEPARTMENTS 

when  the  acts  of  their  Heads  are  the  act  of  the  President,  178. 
Washington  asks  the  opinions  of  their  Heads,  185. 
Grant  asks  the  opinions  of  their  Heads,  186. 

EXECUTIVE   POWERS 

opponents  of  the  Constitution  thought  them  too  great,  17  n.,  93. 
this  objection  disproved  by  history,  93. 

EXEMPTION  FROM    EXECUTION.      [See  Impairment  of  the   Obligation  of 
Contracts.} 

EXEMPTION  FROM  TAXATION.     [See  Taxation.] 

EXPATRIATION.     [See  Naturalization.] 

President  Grant  asks  for  Cabinet  opinions  as  to,  186. 
the  assertion  of  this  right  led  to  the  War  of  1812,  286. 
action  of  the  government  in  relation  to  it,  301. 

EX   POST   FACTO   LAWS 

apply  only  to  criminal  law  and  procedure,  536,  585. 

EXTRADITION 

the  ofl'ence  for  which  he  is  extradited  is  the  only  one  for  which  an  oflTender 
can  be  tried,  323. 

EX-TERRITORIALITY.     [See  Inferior  Courts.] 

FEDERAL  COURTS.     [See  Inferior  Courts:  Judicial  Power:  Supreme  Court.] 

FEDERAL   GOVERNMENT 

wherein  it  differs  from  state  sovereignty,  103. 

FEDERAL   THEORY  OF   CONSTRUCTION.     [See   Construction  of  the   Con- 
stitution.] 

FIELD,    JUSTICE 

his  dissenting  opinion  in  the  Legal  Tender  Cases,  137. 

FIFTEENTH   AMENDMENT 

adopted  to  secure  equal  rights  to  all,  slaves  included,  407. 

is  construed  in  the  Slaughter  House  Cases,  407. 

how  ratified,  055. 

does  not  confer  the  right  of  suffrage,  679. 

limitation  of  the  power  of  Congress  to  legislate  as  to,  679. 

FIFTH  AMENDMENT.     [See  Infamous  Criine.] 
difference  between  it  and  Article  III,  499. 
construed,  647,  648. 


INDEX.  749 

FINES 

excessive  fines  not  to  be  inaposed,  649. 

FIRST   AMENDMENT 

provision  as  to  religious  liberty,  645. 

laws  against  polygamy  do  not  violate  it,  645. 

FOURTEENTH  AMENDMENT.     [See  Citizenship:  Corporation:  Due  Process 

of  Law.'] 
made  necessary  by  the  Civil  War,  407,  053. 
does  not  guarantee  the  right  of  trial  by  jury,  498. 
how  ratified,  053. 
subjects  to  which  it  relates,  657. 
adopted  to  secure  equal  rights  to  all,  658. 
is  prohibitory  on  the  States  only,  659,  664,  666. 
not  violated  by  an  erroneous  judicial  decision,  659. 
does  not  limit  the  police  power  of  the  States,  659. 
its  guarantees  extend  to  all  persons  in  the  United  States,  660. 
it  did  not  affect  the  relations  between  the  citizen  and  the  State  or  the  United 

States,  660. 
the  right  to  practise  law  in  a  State  Court  not  affected  by  it,  660. 
it  adds  nothing  to  the  rights  of  one  citizen  as  against  another,  661. 
a  Chinaman  entitled  to  the  protection  of  its  provision,  662. 
privileges  and  immunities  protected  by  it,  663. 
its  limitations  upon  State  powers,  663. 
the  late  decisions  on  this  subject,  66.3-668. 
a  tax  for  the  cost  of  laying  out  a  street  no  violation  of  it,  669, 

FOURTH  AMENDMENT.     [See  Searches  and  Seizures.] 

FRAMERS   OF   THE   CONSTITUTION 
their  character,  2,  84. 

FRANCE 

consular  convention  with,  54. 

French  attempts  at  constitution-making,  68,  69,  487. 

FRANCHISES.     [See  Corporation.] 

FUGITIVES  FROM  JUSTICE 
when  to  be  surrendered,  037. 
no  way  to  compel  it  to  be  done,  638. 

FUGITIVES   FROM   SERVICE 

the  fugitive  slave  laws  a  proper  exercise  of  legislative  power,  403. 
the  constitutional  provision  taken  from  the  ordinance  of  1787,  638. 

GALLATIN,    ALBERT 

his  opinion  on  the  purchase  of  Louisiana,  129. 

GERMAN   ZOLLVEREIN 
account  of,  439. 


750  INDEX. 

GHENT,  TREATY  OF 

wliat  it  settled  and  what  it  left  unsettled,  224. 

GOVERNMENT 

its  powers  are,  as  a  rule,  unlimited,  575. 

of  the  United  States  was  created  by  the  people,  575. 

it  possesses  only  the  powers  given  by  the  Constitution,  575. 

limits  imposed  upon  the  State  governments,  577. 

GRAND   JURY 

its  organization  and  functions,  490. 
who  are  subject  to  martial  law,  506. 
the  constitutional  provision  as  to,  jurisdictional,  517. 

GRANT,   PRESIDENT 

calls  for  opinions  of  Heads  of  Departments  on  expatriation,  186. 
recommends  an  amendment  authorizing  partial  veto,  188. 

GRAY,   JUSTICE 

his  opinion  in  the  Legal  Tender  Cases,  137,  651. 
his  opinion  in  Wilsoii's  Case,  504. 

GUANO   ISLANDS 

how  crimes  committed  on  one  are  to  be  prosecuted,  372,  623. 

HABEAS   CORPUS 

when  it  may  be  suspended,  349,  489. 

an  appropriate  remedy  in  the  Neagle  Case,  429. 

HAMILTON,   ALEXANDER 

one  of  the  authors  of  the  Federalist,  436. 

HOUSE   OF  COMMONS 

power  of  the  speaker,  219. 

HOUSE    OF   REPRESENTATIVES 
to  choose  its  Speaker,  198. 
powers  of  the  Speaker,  199. 
organization  of  the  House,  200. 
officers  of  the  House,  201. 
power  of  impeachment,  201. 
proceedings  in  case  of  impeachment,  202. 
power  to  originate  revenue  bills,  203. 

elects  the  President  Avhen  there  is  no  election  by  the  people,  208. 
cases  of  contested  election,  209,  210. 
is  not  a  judicial  body,  415. 
cannot  punish  for  contempt,  415. 
how  elected  and  present  number  of,  610. 
statutes  regulating  the  election  of  members,  612,  613  n. 
the  judge  of  the  election  and  qualifications  of  its  members,  614. 
power  of  expulsion,  614. 
to  keep  a  journal  of  its  proceedings,  614. 


INDEX.  751 

IMMIGRATION.     [See  lierjnlntion  of  Commerce.'] 

IMPAIRMENT  OF  THE   OHLIGATION   OF    CONTRACTS.     [See    Contract: 
Taxation.] 
the  prohil)itioii  applies  both  to  express  anil  hiiplied  contracts,  47(5. 
is  a  limitation  upon  State  power  only,  524,  530. 
and  affects  only  contracts  made  before  the  inipairinf?  law,  582. 
a  retroactive  law  not  necessarily  within  the  prohibition,  5i5». 
takiui?  away  the  remedy  impairs  a  contract,  541. 

effect  of  amalicamatinj;  chancery  and  common  law  remedies,  522,  542. 
abolition  of  imprisonment  for  debt  no  impairment,  545. 
exemption  from  execution  an  impairment,  546. 
redemption  laws  an  impairment,  548. 
so  also  appraisement  laws,  541). 
and  stay  laws,  550. 
judicial  decisions  of  State  courts  not  within  the  prohibition,  569. 

IMPEAC HMENT.     [See  House  of  Bepresentatives. ] 

not  subject  to  the  operation  of  the  pardoning  power,  167. 

how  exercised  in  case  of  the  President,  171. 

power  to  impeach  lodged  in  the  House,  201. 

proceedings  in  a  case  of,  202. 

the  Senate  the  court  in  such  cases,  213. 

difficulties  in  the  way  of  this  proceeding,  217. 

offences  charged  may  also  be  prosecuted  in  the  ordinary  courts,  501. 

IMPLIED   POWERS.     [See  Construction  of  the  Constitution.'] 
the  doctrine  of  is  now  a  settled  rule  of  construction,  141-144. 

IMPORTS 

are  not  taxable  by  States  whether  foreign  or  from  another  State,  59U 

IMPOSTS.     [See  Duties  and  Imposts.] 

IMPRISONMENT     FOR    DEBT.       [See    Impairment    of    the     Obligation    of 

Contracts.] 
• 
INDIAN   TRIBES 

■wards  and  pupils  of  the  nation,  401. 
independent  of  State  laws  and  government,  402. 
ci'iminal  jurisdiction  of  the  United  States  over,  425. 
commerce  with,  469. 

INDICTMENT.     [See  Accused  Parties.] 

must  contain  a  clear  statement  of  the  offence,  509. 

INFAMOUS   CRIME 

what  is  within  the  meaning  of  the  Fifth  Amendment,  503-506. 
that  amendment  construed,  647. 

INFERIOR   COURTS 

A  Territorial  court  is  not  a  constitutional  court,  369. 

nor  is  a  Consular  court  under  grant  of  ex-territoriality,  370. 


752  INDEX. 

INSOLVENT  LAWS 

State  powor  to  enact  suspended  by  the  enactment  of  bankrupt  laws,  616. 

INTERNATIONAL   CLAIMS 
settlement  by  treaties,  223. 

INTERSTATE   COMMERCE.     [See  Regulation  of  Commerce :  Taxation.'] 
heavy  taxation  of  during  the  Confederation,  80. 
its  growth  and  importance,  113,  395. 
not  subject  to  State  taxation,  252,  477. 
cases  relating  to,  80  n.,  114  n.,  269,  270. 
inaction  of  Congress  on  the  subject,  395. 
passage  of  the  Interstate  Commerce  Act,  396. 
when  subject  to  State  legislation  and  when  not,  399. 
cases  respecting  it  noted,  425  n. 

cases  relating  to  it  decided  since  Oct.  Term,  1882,  474  n. 
cases  as  to  interstate  railroad  transportation,  479. 

INTOXICATING   LIQUORS.     [See  Regulation  of  Commerce.'] 
State  prohibition  of  their  sale  constitutional,  482,  483, 
unless  it  amounts  to  a  regulation  of  commerce,  482,  674. 
cases  on  the  subject  as  affected  by  the  Fourteenth  Amendment,  673-677. 

INVENTION.     [See  Patents.'] 

INVOLUNTARY   SERVITUDE.     [See  Emancipation :  Fugitives  from  Service.] 
The  Dreil  Scott  Case  and  its  influence  on  history,  403. 
executed  contract  relating  to,  before  Thirteenth  Amendment  enforced,  426. 

IREDELL,   JUSTICE 

his  opinion  in  Penhallow  v.  Doane,  124. 
his  opinion  in  Chisholm  v.  Georgia,  380. 

JAY,    CHIEF  JUSTICE 

minister  to  England  while  Chief  Justice,  378,  420. 
one  of  the  authors  of  the  Federalist,  436. 

JAY'S   TREATY 

its  importance  and  what  was  settled  by  it,  221. 

JEFFERSON,   THOMAS 

his  resolution  adopted  by  Congress  that  the  United  States  is  a  nation,  63. 
his  opinion  upon  the  Louisiana  purchase,  128. 

JOURNALS   OF   CONGRESS 

each  House  required  to  keep  a  journal,  196. 

JUDGES 

of  Federal  Courts  hold  office  during  good  behavior,  340. 

JUDGMENTS   AT   COMMON   LAW 
how  reexamined,  495. 
conclusiveness  of,  498. 


INDEX.  753 

JUDICIARY.     [See  Diviaion  of  Powers  of  ffovernment.'] 
weakness  of  the  Judicial  Branch,  96,  341,  417. 
it  is  the  Judicial  Department  of  the  government,  347. 
the  Supreme  Court  is  its  head,  376. 

JUDICIAL  CONSTRUCTION.    [See  Construction  of  the  Constitution :  Supreme 

CoMrt.] 

JUDICIAL    POWER 

definition  of  it,  313,  348. 

a  case  necessary  to  its  exercise,  315. 

cases  arising  under  treaties,  321. 

cases  atl'ecting  ambassadors,  etc.,  325. 

admiralty  and  maritime  jurisdiction,  326.- 

suits  to  which  the  United  States  is  a  party,  327. 

controversies  between  States,  328. 

between  a  State  and  citizens  of  another  State,  330. 

between  citizens  of  different  States,  331. 

between  citizens  of  the  same  State  claiming  land  under  grants  from  different 

States,  334. 
between  a  State  or  its  citizens  and  foreign  States  or  citizens,  334. 
legislation  defining  jurisdiction,  336. 
a  State  not  suable  by  one  of  its  own  citizens  without  its  consent,  363. 

JUDICIAL  PROCEEDINGS 

in  one  State  to  have  full  faith  and  credit  in  another,  631. 
but  only  so  far  as  they  should  have  them  in  the  former,  631. 
late  cases  concerning  reviewed,  631-637. 

JURISDICTION   OF   FEDERAL   COURTS 
statutes  defining  it,  336, 

JURY.     ISce  Grand  Jury :  Trial  by  Jury. "^ 

trial  by  jury  not  a  part  of  the  system  of  equity  jurisprudence,  319. 

its  organization  and  functions,  491. 

it  takes  the  law  from  the  court  in  Federal  courts,  501,  517. 

the  accused  has  the  right  to  a  jury  of  the  vicinage,  502. 

who  shall  be  impartial,  508. 

definition  of  trial  by  jury,  511. 

origin  of  the  jury  system,  512. 

how  it  grew  up  in  England,  513. 

how  it  came  to  this  countrj',  515. 

KENT,   CHANCELLOR 

his  views  on  the  Constitution,  33. 

KOSZTA,    MARTIN 
his  case,  285,  302. 

LAND  AND  NAVAL  FORCES 

Congress  to  make  rules  and  regulations  for,  624. 


754  INDEX. 

LEE,   RICHARD   HENRY 

letters  from  the  Federal  Farmer,  90  n. 

LEGAL  TENDER.     [See  Bancroft,  George.'] 
review  of  the  decisions  respecting,  135-140. 
purpose  of  the  provisions  respecting,  525. 
these  acts  impaired  preexisting  contracts,  530. 
States  may  not  make  paper  money  a  legal  tender,  581. 

LEGISLATIVE   BODIES 

their  unfitness  to  exercise  judicial  powers,  355. 

LEGISLATIVE   DEPARTMENT 
its  great  growth,  95. 

LETTERS  PATENT.     [See  Patents.} 

LliVIITATION  OF  POWERS  OF  GOVERNMENT.    [See  Government.'] 

it  is  a  feature  of  written  Constitutions,  105. 

LIMITATION,   STATUTES   OF 

when  reasonable  they  do  not  impair  contracts,  271. 

LOCAL   LAW 

when  a  rule  of  property  it  generally  prevails,  317,  357,  359. 

but  not  when  it  extends  equity  jurisdiction  over  common  law  actions,  357,  521. 

LOUISIANA,   PURCHASE   OF 

views  of  difi'erent  persons  as  to  its  constitutionality,  128-130. 
its  efl'ect  upon  the  history  of  the  country,  223. 

MACAULAY.     [See  British  Constitution.] 

MADISON,   JAMES 

his  views  about  the  Articles  of  Confederation,  75  n,,  76  n.,  77  n. 
author  of  the  Virginia  resolution  about  commercial  regulations,  435. 
one  of  the  authors  of  the  Federalist,  436. 

MAINE 

dispute  as  to  government  in,  97  n. 

MANDAMUS 

lies  to  compel  performance  of  ministerial  duty  by  executive  ofBcer,  385,  387, 

424. 

MARQUE   AND   REPRISAL 
what  letters  of  are,  579. 
States  cannot  issue  them,  579. 
Congress  may  grant  them,  624. 

MARSHAL   OF  -CIRCUIT   COURTS.     [See  Habeas  Corpus.] 
to  protect  judges  of  the  Supreme  Court  on  circuits,  429. 
not  subject  to  State  laws  when  taking  human  life  while  performing  this 
duty,  431. 


INDEX.  755 


MARSHALL,   CHIEF  JUSTICE 

his  opinion  in  Barron  v.  Baltimore,  93  n. 

his  opinion  in  United  States  v.  Peters,  127. 

his  opinion  in  McCulloch  v.  Maryland,  141,  389. 

Secretary  of  State  while  Chief  Justice,  378. 

his  opinion  in  Marbury  v.  Madison,  385. 

his  opinion  in  Gibbons  v.  Oyden,  397. 

his  opinion  in  Craig  v.  Missouri,  581. 

MARTIAL  LAW.     [See  Grand  Jury:  Militia.'] 

MEASURES.     [See  Weights  and  Measures.] 

MILITIA 

when  in  the  service  of  the  United  States  under  martial  law,  507. 
Congress  may  call  them  out,  G24. 
reserved  power  of  the  States  over,  625. 

MILLDAMS  AND   MILLS.     [See  Due  Process  of  Laio.] 

MILLER,   JUSTICE 

at  his  death  leaves  the  manuscript  of  these  lectures,  v. 

his  opinion  in  the  Slaughter  House  Cases,  100  n.,  293,  408. 

his  views  as  to  the  construction  of  the  Constitution,  117. 

his  dissenting  opinion  in  Hepburn  v.  Griswold,  136. 

his  opinion  in  Kilbourn  v.  Thompson,  412. 

was  a  memljer  of  the  Electoral  Commission,  421. 

his  opinion  in  the  Neagle  Case,  427. 

his  opinion  in  the  Clinton  Bridge  Case,  447. 

his  opinion  in  New  Jersey  v.  Yaixl,  563. 

MONEY.     [See  Coining  Money,  the  Power  of:  Counterfeiting :  Legal  Tender.] 

MONTESQUIEU 

his  doctrine  concerning  the  distribution  of  governmental  powers,  25. 

his  opinion  of  the  droit  d'aubaine,  50. 

his  opinion  of  the  British  Constitution,  96  n. 

MUNICIPAL  CORPORATION.     [See  Taxation.] 

NATION 

the  United  States  declared  to  be  a,  53. 

NATIONAL   BANKS 

limitation  upon  state  power  to  tax,  258. 

NATIONAL   DEFENCE 

constitutional  provisions  as  to,  624. 

NATURALIZATION.     [See  Citizenship :  ExpatricUion.l 
the  naturalization  treaties,  225,  302. 
definition  of  naturalization,  275,  292. 
how  effected,  ^81. 


756  INDEX. 

NATURALIZATION.—  Continued. 
its  aclvanta,i,'cs,  282. 
confers  the  right  to  inherit  realty,  290. 
and  the  riglit  of  suffrage,  291. 
federal  laws  on  this  subject  are  exclusive,  291. 
how  those  laws  have  affected  other  countries,  297. 
rights  of  a  naturalized  citizen  returning  to  his  native  land,  283,  300-308. 

NAVIGABLE  RIVERS.    [See  Begulation  of  Commerce.'] 

NAVIGATION.     [See  Regulation  of  Commerce.'] 

NAVY.     [See  Land  and  Naval  Forces.] 

NEGRO.     [See  Tliirteenth  Amendment :  Fifteenth  Amendment.^ 

NELSON,   JUSTICE 

a  member  of  the  Joint  High  Commission  in  1871,  420. 
the  great  value  of  his  services,  420. 

NEUTRALITY 

Wasliington  calls  for  opinions  as  to,  185. 

NEW   JERSEY 

reasons  why  it  desired  the  adoption  of  the  Constitution,  79  n. 

NINTH   AMENDMENT 
is  manifestly  just,  650. 

NOBILITY,    TITLES   OF 

cannot  be  granted,  577,  589. 

probability  that  they  would  be  sought  after,  590. 

NORTH   CAROLINA 

reasons  why  it  desired  the  adoption  of  the  Constitution,  79  n. 

NORTHWEST   TERRITORY 

acquired  without  previous  authority  from  the  State,  55. 
slavery  excluded  without  such  authority,  5G. 

OBLIGATION  OF   CONTRACTS.     [See  Contract :  Impairment  of  the  Obligation 
of  Contracts.] 

OFFICE.     [See  Appointment.] 

ORDINANCE   OF   1787.     [See  Northwest  Territory.'] 

PAPER  MONEY.     [See  Legal  Tender.] 

PARDON 

the  power  to,  entrusted  to  the  executive,  165,  179. 
can  be  exercised  before  trial,  1G5. 
cannot  be  talien  away  by  act  of  Congress,  165. 
cannot  be  exercised  in  case  of  impeachment,  167. 

PASSENGERS 

a  State  cannot  tax  foreign  passengers  on  landing,  463. 


INDEX.  757 


PATERSON,   JUSTICE 

his  opinion  in  Penhalloio  v.  Doane,  122. 

PATENTS 

Congress  has  power  to  protect  inventions,  620. 
how  it  has  exercised  that  power,  621  n. 

PEDLERS.     [See  Taxation.] 

PILOTAGE.     [See  Regulation  of  Commerce.'] 

PIRACY 

Congress  maj'  define  and  punish,  622. 

it  may  be  committed  in  an  open  road,  623.  • 

PLACE   OF   TRIAL.     [See  Jury.] 

may  be  fixed  by  Congress  after  an  offence  is  committed  in  a  Territory,  519. 

POLICE  POWER  OF  THE  STATES.  [See  Fourteenth  Amendment:  Regula- 
tion of  Commerce.] 

does  not  extend  to  regulating  the  delivery  of  telegraphic  messages  without 
the  State,  481. 

matters  within  this  power  are  not  subjected  to  legislative  contracts  that 
cannot  be  abrogated,  567. 

the  regulation  of  hours  of  labor  a  valid  exercise  of  police  power,  659. 

POLYGAMY.     [See  First  Amendment.] 

POST   OFFICES   AND   POST   ROADS      . 
the  power  of  Congress  to  establish,  618. 

PRESIDENT,    THE 

mode  of  election,  149. 

term  of  oflice,  151. 

salary,  153. 

power  of  appointing  to  oflice,  15G,  157. 

cooperation  of  the  Senate  in  the  execution  of  this  power,  156. 

power  to  fill  vacancies  during  recess  of  the  Senate,  159,  178. 

tenure  of  office  law,  161. 

is  commander-in-chief,  162. 

the  pardoning  power,  164,  179. 

the  treaty-malving  power,  167. 

is  to  give  information  to  Congress,  168. 

may  call  extra  sessions  of  Congress,  or  of  the  Senate,  170. 

how  to  be  impeached,  171. 

the  veto  power,  and  how  it  is  to  be  exercised,  173. 

he  acts  through  the  Heads  of  Departments,  178. 

except  when  the  act  is  a  judicial  act,  178. 

power  to  approve  an  act  of  Congress  after  adjournment,  187. 

when  no  election  by  the  people,  how  elected,  208. 


758  INDEX. 

PRESIDENT,   THE.  —  Continued. 

cooperates  with  Congress  in  making  laws,  375. 
wlio  acts  in  case  of  his  death  or  disability,  G29,  630. 
where  the  oath  of  office  is  usually  taken,  030. 

PRIVILEGES   AND    IMMUNITIES 

protected  by  the  Fourteenth  Amendment,  663. 

how  far  those  lost  by  participation  in  the  rebellion  are  restored,  677-678. 

PRIZE  COURTS  OF  THE  REVOLUTION 

colonial  prize  courts,  38. 

Congress  becomes  an  appellate  court,  40. 

decisions  of  this  court,  41. 

the  case  of  The  Active,  42. 

action  of  the  Philadelphia  Court  of  Admiralty,  43. 

action  of  Congress,  44. 

creation  of  the  court  of  appeals  in  prize  cases,  47. 

review  of  a  judgment  of  that  court  by  the  Supreme  Court,  121. 

PROHIBITION,  WRIT  OF.     [See  Supreme  Court.} 

PUBLIC  ACTS  AND  RECORDS 

of  one  State  to  have  full  faith  and  credit  in  other  States,  631. 

PUBLIC   AND  PRIVATE   PURPOSES 

distinction  between  them  as  affecting  the  power  of  taxation,  246. 

PUBLIC   AND    SPEEDY  TRIAL 

in  the  absence  of  legislation  to  be  enforced  by  the  courts,  508. 

PUBLIC   DEBT 

constitutional  provisions  respecting,  642,  643. 

QUARANTINE.     [See  Regulation  of  Commerce.] 

QUARTERING   SOLDIERS.     [See  Soldiers.] 

QUINCY,   JOSIAH 

his  opinion  upon  the  acquisition  of  Louisiana,  129. 

RACE.     [See  Fifteenth  Amendment.] 

RAILROADS.     [See  Interstate  Commerce:  Recfulation  of  Commerce.] 
the  power  of  Congress  to  regulate  them,  447. 
they  are  an  element  of  commerce,  447. 

cases  in  which  taxes  upon  transportation  by,  held  void,  479. 
a  railroad  franchise  conferred  by  Congress  not  subject  to  State  taxation,  480. 
exemption  from  legislative  action  not  recognized  unless  clearly  granted,  570. 
double  damages  may  be  imposed  for  injuries  caused  by  non-fencing,  669. 

REBELLION 

the  States  made  treaties  in  violation  of  the  Constitution,  579. 

RECONSTRUCTION 

the  Constitutional  Amendments,  406. 


INDEX.  759 

RECORDS.     [See  Public  Acts  and  Records.] 

REGULATION  OF  COMMERCE.    [See  Interstate  Commerce :  Taxation.] 

defined, 476. 

importance  of  this  power,  433. 

its  history,  434. 

the  Federalist  upon  the  necessity  of.  436-439. 

New  Yorlc  legislation  reviewed  in  Gibbons  v.  Ogden,  80  n.,  397,  442. 

Maryland  legislation  reviewed  in  Guy  v.  Baltimore,  443. 

to  regulate  it  is  to  regulate  its  instruments,  450. 

legislation  respecting  steam  vessels,  451. 

a  tax  on  immigrants  is  a  regulation  of  commerce,  452,  400. 

under  its  police  power  a  State  may  sometimes  regulate  interstate  commerce, 

453,  401,  403. 
rule  governing  such  an  exercise  of  State  power,  454,  458,  475,  477. 
States  may  regulate  their  systems  of  pilotage,  455. 
and  of  wharfage,  450. 

may  bridge  navigaijle  streams  within  their  borders,  457,  478. 
they  have  often  enacted  unconstitutional  laws  in  these  respects,  459-461. 
cases  in  which  State  laws  have  been  upheld,  401-462. 
cases  in  which  they  have  been  held  void,  402-409. 
a  State  cannot  tax  travellers  passing  through  the  State,  463, 
nor  passengers  landing  from  a  foreign  port,  463. 

nor  discriminate  against  pedlers  selling  goods  from  another  State,  404. 
nor  prevent  importations  of  cattle  by  legislation  against  diseased  cattle,  405. 
nor  tax  telegraphic  messages  from  without  the  State,  400,  481. 
nor  regulate  commerce  with  the  Indians,  469. 
the  rules  governing  these  cases  of  interstate  commerce,  475. 
when  goods  become  the  subject  of  interstate  commerce,  476. 
instances  in  which  taxation  afiects  interstate  commerce,  478. 
State  quarantine  laws  are  constitutional  even  if  they  affect  such  commerce, 

480. 
but  not  laws  against  sales  of  spirituous  liquors  without  assent  of  Congress, 

483. 
when  a  drummer's  license  tax  is  a  regulation  of  commerce,  483. 

RELIGIOUS   LIBERTY.     [See  Church  and  State.] 

REPRESENTATION.     [See  Apportionment.] 

REPUBLICAN   FORM   OF   GOVERNMENT 
the  guarantee  of  considered,  640,  641. 

RETROACTIVE  LAWS.     [See  Impairment  of  the  Obligation  of  Contracts.] 
not  forbidden  by  the  Constitution,  539. 

REVENUE   BILLS 

to  originate  in  the  House,  203. 

contests  between  the  House  and  the  Senate  as  to,  204. 

difference  between  American  and  English  practice,  205. 


760  INDEX. 

RHODE   ISLAND 

reasons  for  objecting  to  the  Constitution,  79. 
delay  in  ratifying  it,  441. 

RIVERS.     [See  Navirjahle  Bivers.'\ 

ROUSSEAU 

his  idea  of  society  founded  on  social  compact,  26. 

RULE   OF   TROPERTY 

State  decisions  binding  on  Federal  Courts  when  they  have  become  a  rule  of 

property,  566. 

RUSSIA 

an  absolute  monarchy,  62. 

SALARY.     [See  Compensation.'] 

SEARCHES   AND   SEIZURES 

the  fourth  amendment  secures  against  unreasonable,  646. 

its  provisions  construed,  647,  648. 

SECOND   AMENDMENT 

is  a  limitation  only  on  the  powers  of  Congress,  645. 

SLAUGHTER   HOUSE    CASES 

their  history  and  scope,  100  n.,  293,  408. 

SENATE.     [See  Congress:  Impeachment:   Vice-President.'] 

equality  of  State  representation  in  the  Senate  urged  as  an  objection  to  the 

Constitution,  15. 
separate  powers  of  the  Senate,  211. 
usually  elects  a  President ^9ro  tern.,  212. 
is  a  court  for  the  trial  of  impeachments,  218. 
acts  upon  treaties,  214,  375. 
acts  upon  executive  appointments,  216. 
its  organization,  611. 

statutes  regulating  the  election  of  its  members,  613. 
required  to  keep  a  journal  of  its  proceedings,  614. 

SEVENTH  AMENDMENT.     [See  Trial  by  Jury.] 

•SIXTH   AMENDMENT 

difl'erence  between  it  and  Article  III.,  499. 

SLAVE   TRADE 

the  question  caused  trouble  in  the  convention,  628. 
constitutional  settlement  of  it,  628. 

SLAVERY.      [See   Fugitives  from   Service:   Involuntary   Servitude:     Tliirteenth 
xhnendment.] 

SOLDIERS 

not  to  be  quartered  in  any  house  in  time  of  peace,  646. 
nor  in  time  of  war  except  as  prescribed  by  law,  646. 


INDEX.  7m 


SOVEREIGN   POWERS 

the  Congress  of  the  Confederation  elaimcd  and  exercised  them,  57. 
some  such  powers  never  possessed  by  t;hc  States,  3G. 

SOVEREIGNTY   OF   THE   PEOPLE 
de  Tocqueville's  views  as  to,  89  n. 

SPEAKER.     [See  House  of  Commons :  Hovse  of  Bepresentatives.'] 

SPIRITUOUS  LIQUORS.     [See  Jntoxicatiiifi  Liquors:  lierjnhaion  of  Commerce. 'I 

STATES.     [See  Sovereirjn  Powers.'] 

difference  between  their  government  and  the  Federal  government,  10.3. 

held  that  they  can  be  sued  in  Federal  courts,  379. 

subsequent  proceedings  resulting  in  the  Eleventh  Amendment,  380-382. 

suits  against,  under  Articles  of  Confederation,  421-423. 

ChiskoJm  V.  Georgia  overruled,  423. 

limits  imposed  upon  the  States,  577. 

STATES'   RIGHTS 

theory  of  construction,  23,  117. 

STEAM  VESSELS.     [See  Regulation  of  Commerce.'] 

STORY,   JUSTICE 

his  opinion  in  3Iartin  v.  Hunter,  102  n. 
his  opinion  in  Parsons  v.  Bedford,  497. 

STRONG,   JUSTICE 

his  opinion  in  Knox  v.  Lee,  136. 

SUFFRAGE.     [See  Citizenship.'] 
extension  of,  106. 

SUPREME   COURT 

its  functions  in  construing  the  Constitution,  315. 

only  one  Supreme  Court,  and  it  cannot  be  abolished  by  Congress,  338. 

its  judges  hold  office  during  good  behavior,  340,  343. 

its  original  jurisdiction,  344. 

its  appellate  jurisdiction,  345. 

its  history  and  influence,  374. 

is  the  head  of  the  Judicial  Department,  376. 

its  constitutional  decisions  not  binding  on  the  Executive,  377. 

its  organization  and  its  chief  justices,  378. 

when  its  justices  have  been  employed  on  civil  duties,  378,  420. 

it  may  issue  a  writ  of  prohibition,  427. 

its  justices  protected  when  travelling  on  circuit,  428. 

SURRENDER   OF   OFFENDERS,     l^ee  Fugitives  from  Justice.] 

SUSANNA,   THE 

the  judgment  reviewed  and  sustained,  121. 


762  INDEX. 

SWISS   CONFEDERATION 
its  disadvantages,  87  n. 

TANEY,    CHIEF   JUSTICE 

his  opinion  in  United  States  v.  Ferreii-a,  354. 

TAXATION.  [See  Bank  of  the  United  States :  Conquered  Territory :  Ditties  and 
Imposts :  Fourteenth  Amendment :  National  Banks :  Passengers :  Pedlers : 
Public  and  Private  Purposes:  Begulation  of  Commerce:  Tonnage  Tax.} 

power  of  Congress  to  levy  taxes,  104,  227,  263. 

extent  of  tliis  power,  229-236. 

capitation  tax,  236. 

direct  tax,  236. 

excise  tax,  238. 

income  tax,  238. 

uniformity  of  taxation,  239. 

limits  of  tlie  taxing  power,  242. 

municipal  taxation,  243. 

an  income  tax  cannot  be  imposed  on  a  Federal  judge,  247. 

limitations  upon  taxing  power  of  a  State,  249. 

it  cannot  tax  impoi'ts  or  exports,  250. 

nor  interstate  commerce,  252. 

nor  impose  a  tonnage  tax,  253. 

implied  limitations  on  the  taxing  power,  256. 

income  from  United  States  bonds  not  taxable  by  a  State,  257. 

nor  salaries  of  United  States  officers,  258. 

how  far  a  State  may  tax  national  banks,  258. 

it  cannot  tax  travellers  passing  through  it,  260,  463. 

municipal  corporations  cannot  tax  for  private  benefit,  264. 

exemptions  from  taxation  looked  upon  with  disfavor,  265. 

a  State  cannot  part  with  its  general  power  to  tax,  265. 

what  are  exempt  from  State  taxation,  266. 

review  of  the  Virginia  coupon  cases,  267. 

taxation  of  interstate  commerce  —  recent  cases,  260-270. 

power  of  taxation  sometimes  enters  into  municipal  contracts,  271. 

the  municipalitj'  may  then  be  compelled  to  exercise  it,  273. 

a  State  cannot  tax  passengers  landing  from  a  foreign  port,  463. 

nor  put  a  discriminating  tax  on  pedlers  selling  goods  from  another  State,  464. 

nor  prevent  importations  of  cattle  from  other  States  under  guise  of  health 
laws,  465. 

nor  tax  telegraphic  messages  from  without  the  State,  466. 

corporations  are  protected  against  such  unconstitutional  exactions,  476. 

when  a  license  tax  on  drummers  is  unconstitutional,  483. 

taxes  discriminating  against  productions  of  other  States  invalid,  483. 

laws  for  food  inspection  so  discriminating  are  invalid,  484. 

a  legislature  may  not  limit  the  taxing  power  of  its  successor,  562. 

the  law  should  afford  an  opportunity  to  contest  a  tax,  666,  668. 


INDEX.  763 

TELEGRAPH.     [See  Police   Power  of  the   States :    Regulation   of  Commerce  : 

Taxation.'] 
TENURE   OF   OFFICE   LAW 
an  account  of  it,  IGO. 

TERRITORIES 

power  of  Congress  over  them  general  and  plenary,  638. 

TERRITORY,    ACQUISITION    OF   NEW 

is  within  the  constitutional  power  of  the  United  States,  131. 

TERRITORIAL  COURTS.     [See  Inferior  Courts.] 

THIRD   AMENDMENT.     [See  Soldters.'] 

THIRTEENTH   AMENDMENT 

it  abolished  slavery,  406,  G56. 

legislative  power  conferred  by  it  limited  to  slavery  and  its  incidents,  656. 
denial  of  equal  accommodations  at  inns  no  violation  of  it,  656. 
limited  to  matters  subsequent  to  its  adoption,  657. 

TITLES  OF  NOBILITY.     [See  jSrobillt}/.] 

TONNAGE   TAX 

cannot  be  imposed  by  a  State,  253,  593. 
what  a  tonnage  tax  is,  593. 

TRADE-MARK 

property  in  it  not  protected  by  the  copyright  clause,  622. 
but  is  protected  by  the  courts,  622. 

TREASON 

is  a  cause  for  impeachment,  214. 

TREATIES.     [See  Preside)it :  Senate.] 

negotiated  by  the  Continental  Congress,  48. 

the  national  powers  which  they  assumed,  49. 

their  restraints  upon  State  action,  53. 

consular  convention  with  France,  54. 

treaties  providing  for  payment  of  money,  181. 

principal  treaties  reviewed,  220-226. 

when  a  case  arises  under  a  treaty,  321. 

wkat  a  treaty  is,  321,  323. 

no  State  can  enter  into  one  with  a  foreign  power,  578. 

nor  make  compacts  with  other  States,  578. 

TREATY-MAKING   POWER 

the  consular  convention  with  France  a  construction  of  it,  55. 
it  is  entrusted  to  the  President  and  Senate,  167. 

TRIAL  BY  JURY.     [See  Local  Law .-  mhltr  and  Speedij  Trial.] 
not  a  part  of  the  system  of  equity  jurisprudence,  319. 
the  right  to  it  extends  to  the  District  of  Columbia,  360,  518. 


764  INDEX. 

TRIAL  BY  JURY.— Continued. 

the  provision  does  not  apply  to  crimes  against  tlie  United  States  not  commit- 
ted in  a  State,  361. 

a  grand  jury,  490. 

a  petit  jury,  491. 

the  provision  refers  to  the  common  law  as  understood  in  England,  492. 

it  has  no  reference  to  State  action,  493,  521. 

nevertheless  applies  to  a  verdict  in  a  State  court,  493. 

the  right  in  civil  cases  may  be  waived,  494,  521. 

the  fifth  and  sixth  amendments,  499. 

Article  III  is  peremptory,  500. 

federal  judges  may  always  express  opinions  on  the  facts,  517. 

these  provisions  embrace  all  misdemeanors  whose  punishment  involves 
deprivation  of  liberty,  518. 

but  not  a  contempt  committed  in  the  presence  of  the  court,  519. 

TWELFTH  AMENDMENT 

its  origin,  653. 

UNIFORMITY 

required  in  the  imposition  of  duties  and  excises,  239. 

the  uniformity  is  to  be  between  different  places  and  States,  240,  242. 

the  tax  should  operate  with  the  same  eft'ect  everywhere,  264. 

UNITED   STATES.     [See  Government.] 

UNRATIFIED    ARTICLES    OF   AMENDMENT 
articles  sent  out  but  never  ratified,  91  n. 

VACANCIES 

happening  during  recess  may  be  filled  by  the  President,  159. 

tenure  of  office  law  and  its  efl'ect,  160. 

an  unfilled  office  created  at  the  session  before  the  vacancy,  178. 

VENICE 

an  aristocratic  form  of  government,  62. 

VETO  POWER 

vested  in  the  President,  173. 

not  confined  to  constitutional  objections,  175. 

a  partial  power  recommended  by  President  Grant,  188. 

VICE-PRESIDENT 

presides  over  the  Senate,  212. 

without  a  vote  except  in  case  of  equal  division,  212. 

VICINAGE,   JURY  OF.     [SeeJwr//;  Place  of  Trial.'] 

VIRGINIA.     [See  Madison,  James.] 

action  of  its  legislature  leading  to  the  formation  of  the  Constitution,  5. 
its  funding  act  of  1871,  567. 

VOTER.     [See  Citizenship.] 


f 


INDEX.  765 


WAR 

a  state  of  does  not  chanf^e  the  relation  of  the  citizen  to  the  government,  C26. 
or  displace  civil  authorities  outside  of  the  theatre  of  coutlict,  G2G. 

WASHINGTON 

he  advises  Congress  to  establish  prize  courts,  40. 
the  application  for  appointments  trouble  him,  177. 
call  for  opinions  upon  neutrality,  185. 

WASHINGTON,   TREATY   OF,   1871 
what  was  settled  by  it,  225. 

WEIGHTS   AND   MEASURES 

Congress  may  fix  their  standard,  617. 

what  Congress  has  done  under  this  power,  617. 

WHARFAGE.     [See  Begulation  of  CommeTce.'\ 

WITNESSES.     [See  Accused  Parties.'] 

WRITTEN   CONSTITUTION 

what  is  understood  by  it  in  America,  66. 

ZOLLVEREIN.    [See  German  Zollverein.} 


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